page v. gmsa

Vermont Superior Court
Filed 01/31/22
Lamoille Unit

CIVIL DIVISION
Case No. 210-11-19 Lecv

VERMONT SUPERIOR COURT
Lamoille Unit

154 Main Street

Hyde Park VT 05655

802-888-3887
www.vermontjudiciary.org

Page vs. Green Mountain Snowmobile et al

ENTRY REGARDING MOTION

Title: Motion for Summary Judgment (Motion: 4)
Filer: Richard J. Windish
Filed Date: July 01, 2021

The motion is DENIED.

Bernadette Page (“Plaintiff”) suffered injuries as the result of a snowmobile accident at
Smuggler’s Notch Resort (“the Resort”) on January 29, 2017, while she was participating in a
group snowmobile tour that was operated by Green Mountain Snowmobile Adventures, LLC
(“GMSA”). According to the complaint she filed against GMSA and the Resort (together,
“Defendants”), Plaintiff “suffered serious injuries” when she lost control of the snowmobile
Defendants provided her: she “struck a guardrail on a closed section of Route 108, catapulted
off the snowmobile down a steep embankment and struck her head against a tree.” Plaintiff
stated in a deposition she gave in July 2020 that, as a result of the accident, she broke her right
wrist in two places, dislocated her right elbow, and broke her left clavicle. Plaintiff asserts that
the Defendants owed her a duty to “properly train, equip and prepare” her before the tour began
and to “properly and directly supervise [her] while on the tour.” Plaintiff further asserts that she
suffered the injuries as a direct and proximate result of Defendants’ negligence. Plaintiff seeks
damages for permanent injury, past and future pain and suffering, past and future medical
expenses, loss of the ability to enjoy life, and lost wages and/or earning capacity.

Defendants deny any liability to Plaintiff and have filed a joint motion for summary
judgment. Defendants contend that Plaintiff's cause of action is barred by Vermont’s inherent
risk doctrine, codified at 12 V.S.A. § 1037, which provides:

Notwithstanding the provisions of section 1036 of this title, a person who takes
part in any sport accepts as a matter of law the dangers that inhere therein insofar
as they are obvious and necessary.

Section 1036, referenced in the inherent risk doctrine statute, describes Vermont’s comparative
negligence statute. See 12 V.S.A. § 1036 (providing that plaintiff's contributory negligence will
not bar negligence claim unless plaintiff's negligence exceeds total causal negligence of
defendant(s)).

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Summary Judgment Standards

A party is entitled to summary judgment if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). A fact is
material “‘if it might affect the outcome.’” Jn re Estate of Fitzsimmons, 2013 VT 95, § 13, 195
Vt. 94 (quoting N. Sec. Ins. Co. v. Rossitto, 171 Vt. 580, 581, 762 A.2d 861, 863 (2000) (mem.)).
“Where the moving party does not bear the burden of persuasion at trial, it may satisfy its
burden of production by showing the court that there is an absence of evidence in the record to
support the nonmoving party’s case. ... The burden then shifts to the nonmoving party to
persuade the court that there is a triable issue of fact.’” Boulton v. CLD Consulting Eng’rs, 175
Vt. 413, 417 (2003) (quoting Ross v. Times Mirror, Inc., 164 Vt. 13, 18 (1995)). “‘The
nonmoving party may survive the motion if it responds with specific facts raising a triable
issue, and it is able to demonstrate sufficient evidence to support a prima facie case.” State v.
G.S. Blodgett Co., 163 Vt. 175, 180 (1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323,
324 (1986)). “If the nonmoving party fails to establish an essential element of its case on which
it has the burden of proof at trial, the moving party is entitled to summary judgment as a matter
of law.” Washington v. Pierce, 2005 VT 125, § 17, 179 Vt. 318 (quoting G.S. Blodgett, 163 Vt.
at 180). When considering motions for summary judgment, the nonmoving party is entitled to
“all reasonable doubts and inferences.” West v. N. Branch Fire District #1, 2021 VT 44, ¥ 13
(citing In re Miller Subdivision Final Plan,_2008 VT 74, {| 8, 184 Vt. 188): G.S. Blodgett, 163
Vt. at 180.

Legal Analysis

Plaintiff asserts that Defendants’ negligence caused her damages. “Common-law
negligence has four elements: a legal duty owed by the defendant to the plaintiff, a breach of
that duty, injury to the plaintiff, and a causal link between the breach and the injury.” Sutton v.
Vermont Reg’l Ctr., 2019 VT 71A, § 26, 212 Vt. 612 (citing Montague v. Hundred Acre
Homestead, 2019 VT 16, § 14, 209 Vt. 514). Whether a defendant owes a duty to a plaintiff “‘is
a question of fairness that depends on, among other factors, the relationship of the parties, the
nature of the risk, the public interest at stake, and the foreseeability of the harm.’” Jd. (quoting
Deveneau v. Wielt,_2016 VT 21, § 8, 201 Vt. 396 (quotations and alteration
omitted)).”Underlying ‘these considerations is the basic tort rule that duty is measured by
undertaking.’ Id.

Defendants asserted as an affirmative defense that they owed no duty to Plaintiff in this
case due to Vermont’s inherent risk doctrine, which, according to the District Court of Vermont,
incorporated the common law doctrine of assumption of risk:

This rule holds that when a risk or danger is obvious such that it is widely known
by reasonable people under the particular circumstances and necessary such that it
is impossible or unreasonably difficult or expensive to eliminate, the person
engaged in the dangerous activity assumes those obvious and necessary risks.
Concomitantly, there is no duty on the part of others to warn about or extinguish
those risks.

Diilworth v. Gambardella, 776 F. Supp. 170, 172 (D. Vt. 1991).
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The Vermont Supreme Court first addressed this statute in 1994, and it set forth the
preamble of the Act, which states, in part:

It is a purpose of this act to state the policy of this state which governs the liability
of operators of ski areas with respect to skiing injury cases, including those
resulting from both alpine and Nordic skiing, by affirming the principles of law
set forth in Wright v. Mt. Mansfield Lift, Inc., [96 F. Supp. 786 (D. Vt. 1951),]
and Leopold v. Okemo Mountain, Inc., [420 F. Supp. 781 (D. Vt. 1976),] which
established that there are inherent dangers to be accepted by skiers as a matter of
law.

Estate of Frant v. Haystack Grp., Inc., 162 Vt. 11, 14 (1994) (quoting 1977, No. 119 (Adj.
Sess.), § 1 (eff. Feb. 7, 1978)). The Court in Estate of Frant reviewed negligence cases that had
been decided up to that point that involved a ski area’s duty to skiers. See id. at 14-18.
Defendants cite us to no case, nor has the court found any cases, in which the doctrine has been
applied to accidents involving snowmobiles. According to the District Court of Vermont, “A
basic principle of sports participation generally is that a person who takes part in a sport accepts
the obvious and necessary dangers which inhere in it.” Dillworth, 776 F. Supp. at 172. “As long
as the risk . . . is found to be obvious and necessary then the statute will apply to shield the
defendant by removing any duty owed to the plaintiff.” Jd. at 173

“Whether a risk is inherent, obvious and necessary to a sport is ordinarily an issue
appropriate for a jury.” Umali v. Mount Snow Ltd., 247 F. Supp.2d 567, 575 (D. Vt. 2003)
(citing Dillworth v. Gambardella, 970 F.2d 1113, 1120 (2d Cir. 1992)); see LeClair v. LeClair,
2017 VT 34, 7 13, 204 Vt. 422 (holding trial court erred in granting defendant’s motion for
summary judgment in negligence case because jury could have found condition of roof presented
unreasonable risk to plaintiff and that defendant, therefore, owed plaintiff duty).

In arguing that the inherent risk doctrine absolves them of liability, Defendants rely on
Plaintiff’s acknowledgment during her deposition of the following risks: that she knew she was
going to be in control of the snowmobile she was riding, that she might not be able to handle the
snowmobile, that she might misunderstand or forget the instructions she had been given
regarding the operation of the snowmobile, that the snowmobile could malfunction and cause her
to crash, that the risk of losing control of the snowmobile was inherent to the sport of
snowmobiling, and that falling from the snowmobile and colliding with manmade or natural
obstacles was a risk.' In fact, Defendants point out, Plaintiff conceded during her deposition that
by the time she fell off her snowmobile and sustained the injuries at issue, she had stopped the

1 Defendants also rely on a Participant Agreement, Release and Assumption of Risk form GMSA required Plaintiff
to sign before participating in the snowmobile tour in which she agreed to hold GMSA harmless for claims of
negligence. The Vermont Supreme Court has refused to enforce this type of agreement on public policy grounds
when the activity at issue is open to the general public. See Dalury v. S—K-I, Lid., 164 Vt. 329, 333-36 (1995);
Spencer v. Killington, Ltd., 167 Vt. 137, 142-43 (1997); see also Umali, 247 F. Supp.2d at 572-73; cf. Provoncha v.
Vermont Motocross Ass’n, Inc., 2009 VT 29, J 20, 185 Vt. 473 (enforcing release where event at issue not open to
general public). As a result, the release Plaintiff signed has no effect on the question whether Defendants are liable
to Plaintiff for negligence.

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snowmobile a couple of times, she was able to keep up with the group, and she had already made
at least a couple of turns.

Although Plaintiff does not state this explicitly, Plaintiff's argument, essentially, is that
Defendants acknowledged a duty to prepare and orient her to the snowmobile before the tour but
that its preparation and orientation were insufficient and constituted negligence. Plaintiff
testified during her deposition that, before the snowmobile tour, GMSA staff instructed her on
how to start and stop the snowmobile, how to use the throttle, how to turn, and how to turn off
the snowmobile. However, according to Plaintiff, this instruction was insufficient.

Dustin Turner was one of GMSA’s tour guides on January 29, 2017, when Plaintiff had
her accident. He testified during a deposition that, before a tour begins, “we explain to these
people what they need to do, [and] how they need to do it... . [W]e are there to oversee them
and to help them and instruct them, but ultimately they’re the ones in control when they’re riding
the snowmobile.” Mr. Turner further testified as follows:

Q: During the prep or the orientation, do you - - what steps do you take to assure
beyond talking that the customer is going to be able to safely operate the sled?

A: When we - - when we would get them on the snowmobiles, when they would
walk up and get on the snowmobiles, we would come down through, and we
would start their snowmobiles for them. And while we’re starting their
snowmobiles for them, we’re, okay, you’ve got the brake? Yup, it’s right here.
And you’ve got the throttle? Yup, it’s right here. And just the very basics of that
so that we know that they were at least paying attention during the prep so they
know where the brake is, they know where the throttle is, because - - and they
know where the emergency switch is. And those are the only things that really
matter on that ride.

Mr. Turner testified that an orientation typically took between ten and twenty minutes,
depending on the group.

Plaintiff contends that GMSA was negligent in the way it prepared her for its snowmobile
tour. Defendants admitted the following statements by Plaintiff that she submitted in opposition
to Defendants’ motion for summary judgment:

24. Plaintiff was born after 7/1/83 and had never driven a snowmobile before 1/29/17.

25. Vermont law requires that someone born after 7/1/83 obtain a certificate of
snowmobile education and makes an exception for a person under the direct
supervision of a certified safety instructor.

26. Dustin Turner and Ralph (Skip) Irish attended the Vermont State Police’s approved
snowmobile tour guides training course on 12/16/15 in order to become certified
safety instructors.

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27. The Guide training course teaches snowmobile tour guides that the decision to
authorize a customer to operate should be made through a combination of customer
disclosure and supervised orientation. In addition to giving verbal instructions or
presentations staff guides are taught to provide physical demonstrations and hands-on
practice to customers. Guides are taught that effective instruction includes observing
the customer performing the skills and tasks on their own.

28. The practice riding skills materials provided to guides at the training include the
following recommendations:

You can improve your skills by practicing at a slow speed in a large, flat,
snowcovered field with no obstructions. An experienced adult should be
with you as you practice the following skills.

e Start and stop at various speeds, and try a few quick stops.

e Use hand signals as you turn in different directions.

e Try all four riding positions.

e Complete an oval and a figure eight. Also, make tight, low-speed
turns.

e Slalom through traffic cones.

Plaintiff’s accident occurred as she was trying to execute a turn. She claims that GMSA
failed to require her to demonstrate, during the orientation, before the tour began, that she could
effectively turn the snowmobile. She further describes GMSA’s negligence as follows:

GMSA guides did not observe customers operate a snowmobile on a practice area
after giving them instruction. GMSA did not include any observation of the
customer’s ability to demonstrate their understanding of the skills to operate a
snowmobile safely before starting the “Evening Snowmobile Tour.” Customers
were not asked to demonstrate their ability to lean into a turn on a practice course.
Instead, the lead guide observed the customers using his mirrors and turning
around as the tour got underway on a wide and relatively flat ski trail.

In response to Defendants’ Interrogatories, Plaintiff identified an expert she intends to call who
is prepared to testify about industry standards for the safe operation of a snowmobile touring
company renting snowmobiles regarding the orientation of its customers. Plaintiff contends that
her expert will testify to the following, inter alia:

e GMSA failed to assess Plaintiff’s experience sufficiently to assure that she understood
how to operate a snowmobile.

e GMSA failed to dedicate the time necessary to ensure that Plaintiff understood how to
operate a snowmobile.

e GMSA failed to require Plaintiff to operate a snowmobile on a practice course to allow
its guides to observe Plaintiff demonstrate her ability to operate a snowmobile safely.

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Defendants deposed Plaintiff's expert and rely on the expert’s testimony that Plaintiff's
accident occurred “because she overaccelerated and then lost control of the sled.” However, the
expert also testified that the accident occurred because of the “lack of training” by GMSA.

As described herein, the parties disagree about whether Defendants owed Plaintiff a duty
of care. A jury must, therefore, decide whether the dangers that inhere in snowmobiling are
“obvious” and “necessary” as those terms are used in 12 V.S.A. § 1037, such that the inherent
risks are “impossible or unreasonably difficult or expensive to eliminate.” Dillworth, 776 F.
Supp. at 172; see Pitasi v. Stratton Corp., 968 F.2d 1558, 1562 (2d Cir. 1992) (explaining that
jury could find ski resort negligent and liable for skier’s injuries despite inherent risk doctrine if
facts so warrant). If the jury determines that Defendants owed Plaintiff a duty, they must then
determine whether the training and orientation Defendants presented to Plaintiff on January 29,
2017, was sufficient to satisfy this duty. These questions present genuine issues of material fact
that preclude granting Defendants’ motion for summary judgment.

The motion is therefore denied. The clerk shall schedule a pretrial conference.

Electronically si

Mary ifs Teachout
Superi@f Court Judge

gned pursuant to V.R.E.F. 9(d) on January 31, 2022 at 8:58 AM.

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