2005 | Cited 0 times | D. Massachusetts | August 29, 2005


This action arises from an appalling tragedy, the death offourteen-year-old Matthew Walsh from injuries suffered whileskiing at the Jiminy Peak Ski Resort on February 11, 2002.

Matthew's parents, Timothy and Christina Walsh ("plaintiffs"),have brought this action in two counts, seeking damages both forMatthew's wrongful death and for his conscious pain andsuffering. Defendant Jiminy Peak Inc. ("defendant") has moved forsummary judgment based on the application of the MassachusettsSki Safety Act, Mass. Gen. Laws ch. 143, §§ 71H-71S. Finding thatthis statute does apply, the court will allow defendant's motionas to Count One, the plaintiffs' wrongful death claim. Sincedisputed issues of fact, however, forbid summary judgment on theclaim for conscious pain and suffering, defendant's motion will be denied as to Count Two.

Because the law in this area is reasonably clear, the courtwill deny plaintiff's motion to certify a question to theMassachusetts Supreme Judicial Court.


A court may properly grant summary judgment if "there is nogenuine issue as to any material fact" and "the moving party isentitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). A "genuine" issue is one that reasonably could be resolvedin favor of either party, and a material fact is one that "mightaffect the outcome of the suit under the governing law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).

Once the moving party has asserted that no genuine issue ofmaterial fact exists, the burden is on the opposing party topoint to specific facts demonstrating that there is, indeed, atrial-worthy issue. National Amusements, Inc. v. Town ofDedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied,515 U.S. 1103 (1995). Not every factual conflict, of course,necessitates trial. "It is only when a disputed fact has thepotential to change the outcome of the suit under the governinglaw if found favorably to the nonmovant that the materialityhurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera,108 F.3d 445, 448 (1st Cir. 1997)


The court, as it must for a summary judgment motion, views the properly documented facts in the light most favorable to thenon-moving party. Conward v. Cambridge School Committee,171 F.3d 12, 18 (1st Cir. 1999).

The tragic story of this case begins on February 11, 2002, whenMatthew Walsh, age fourteen, visited Jiminy Peak Ski Resort inBerkshire County, Massachusetts, as part of his high school's skiclub trip. The club arrived at the resort at approximately 4:00p.m. and the students were on the mountain by 4:30 p.m. Matthewhad skied at least once down the Left Bank trial when he and twofriends, Nicolas and Pamela Moutopoulos, decided to skiWhitetail, a trail carrying a "black diamond" rating, meaningthat it was of the highest level of difficulty. Plaintiffs aver,and the court for purposes of this motion accepts as true, thattwo skiers had previously complained to the defendant's employeesthat conditions on Whitetail were too icy to permit safe skiingat that time and the trail ought to be closed. NeverthelessWhitetail remained open when the three high school students begantheir run.

Soon after starting down the slope, Matthew lost control andveered off toward the side of the trail. Nicolas, who had stoppedto assist his sister after she fell, noticed Matthew beginning tolose his balance. After collecting themselves farther down,Nicolas and Pamela did not see Matthew and assumed he hadrecovered from his fall and had made his way to the bottom of thetrail.

In fact, unbeknownst to his companions, Matthew had collided with some object, or objects, off the right side of the trail andsuffered injuries that were to prove fatal. The evidence ofrecord is insufficient to permit any factfinder to conclude withcertainty whether the object Matthew hit was a tree or a pole —both were in the area near where he was found — but it was clearthat, whatever the object, it was beyond the skiable boundary ofthe trail.

Jiminy Peak's ski patrol was notified at approximately 4:45p.m. that a skier had gone off the side of Whitetail and wasmissing. In response, defendant dispatched ski patroller AmberMoore to investigate. Moore descended the trail while another skipatroller prevented other skiers from entering. An experiencedskier and ski patroller, Moore reached the bottom of the trailwith some difficulty, did not locate Matthew, and recommendedthat Whitetail be closed. Based on the report from Moore, themanagement instructed that the trail be closed and that sheperform another sweep. The trail head was cordoned off with ropeand Moore again descended the trail looking for skiers who mighthave gone off into the woods. Moore did not locate Matthew and atapproximately 5:30 p.m. the lights on the trail were turned off.

At approximately 6:15 p.m., when Matthew still had notappeared, Matthew's friends notified ski patroller Ellis Rud thathe was missing and last seen on Whitetail. Rud requested that thelights on the trail be turned back on and, with the aid ofcrampons, proceeded to sweep Whitetail once more. Matthew was then found lying off the right-hand side of the trail.

Viewing the facts in the light most favorable to theplaintiffs, a jury could find that the boy still exhibited somesigns of consciousness at the time he was discovered. Followinghis evacuation from the mountain by the ski patrol, Matthew wasturned over to an ambulance crew at 7:20 p.m., more than twohours after he suffered his injuries.

Matthew died one week later on February 18, 2002, from theinjuries sustained at the time of his collision. The medicalevidence is uncontested that the delay in discovering Matthew didnot contribute to his demise; sadly, the injuries he received onimpact with whatever he struck made his death inevitable.


Enacted in 1978, the Massachusetts Ski Safety Act ("MSSA"),Mass. Gen. Laws ch. 143, §§ 71H-71S, is intended to "define andrestrict the responsibility and liability of ski operators toskiers injured by risks inherent in the sport of skiing." Eippv. Jiminy Peak, Inc., 154 F.Supp.2d 110, 113 (D.Mass. 2001),quoting McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 679,665 N.E.2d. 26, 27 (1996). Within its provisions are spelled outthe duties incumbent upon a ski area operator to "be responsiblefor the maintenance and operation of ski areas under its controlin a reasonably safe manner." Mass. Gen. Laws ch. 143 § 71N(6).

This general duty, however, is tempered by an exclusion fromliability "for damages to persons or property, while skiing,which arise out of the risks inherent in the sport of skiing." Id. "The MSSA represents the legislature's judgment as to theproper balance between the skier's need for safety and the skiarea operator's economic survival." Eipp, 154 F.Supp.2d at 110.(internal quotation omitted).

As a threshold matter, the plaintiffs argue that the MSSA isinapplicable to claims for wrongful death, which (they claim)must be addressed under the Commonwealth's wrongful deathstatute, Mass. Gen. Laws ch. 229, § 2. In support of thisargument they cite the Supreme Judicial Court's decision inGrass v. Catamount Development Corp., 390 Mass. 551 (1983).

In Grass, the SJC addressed the narrow question of whetherMSSA's one-year statute of limitations, set forth at Mass. Gen.Laws ch. 143, § 41P, governed actions based on wrongful death orwhether the three-year period mandated in the wrongful deathstatute, Mass. Gen. Laws ch. 229, § 2, was controlling. The SJCheld "that an action for wrongful death arising out of an injuryto a skier and brought against the operator of a ski area isgoverned by the limitation of actions provision in G.L.c. 229, §2." Grass, at 554.

The statute of limitations is not an issue in the present case,but the plaintiffs read Grass broadly. Based on its holding,they argue that in this case the court should disregard not onlythe limitation provisions but all the substantive provisions onthe MSSA as well, including those that limit the defendant'sexposure to liability, and simply analyze their claims under atraditional common law negligence rubric. Plaintiffs rely on references in two cases, Atkins v. JiminyPeak, Inc., 401 Mass. 81, 86 (1987) (Liacos, J., dissenting), andSpinale v. Pam F., Inc., 1995 Mass.App.Div. 140, 141 (1995),which might be construed to suggest, in dicta, that the Grassholding is more expansive and provides a blanket exemption fromthe MSSA for wrongful death claims. While it was reasonable forthe SJC to conclude that the Legislature would "put a wrongfuldeath claimant on a different footing from one claiming injury"for purposes of expanding the time in which a claim may bebrought, to read the court's holding more broadly as to supplantthe substantive provisions would be to gut the MSSA of itspurpose. Grass, at 553; quoting Gallant v. Worcester,383 Mass. 707, 714 (1981).

In his dissent in Atkins, Justice Liacos commented that "thestatutory scheme is designed not only to enhance the safety ofskiers, but also to limit the liability of a ski area operatorfor his negligent activities which cause injuries (but notdeaths, see Grass?) on the ski slopes." Atkins, at 86.Viewed in isolation, this passage appears to support theplaintiffs' argument that the MSSA does not apply to casesinvolving wrongful death. Atkins, however, involved aplaintiff's claim for injuries caused by a ski operatornegligently renting her defective equipment. The court held thatthe MSSA and its statute of limitations were applicable becausethe injury occurred on the ski slope, even though the allegednegligent conduct took place in the ski operator's base lodge.Justice Liacos's dissent focuses not on the distinction between types ofinjuries, but rather on the SJC's holding that the MSSA coveredski injuries "regardless of where the negligence that caused theharm takes place." Id., at 85. Justice Liacos's comments arefocused on the applicability of section 71P, the statute oflimitations provision of the MSSA, in cases of wrongful death.His passing remark does not suggest the supplantation of thesubstantive provisions of the act.

Spinale is even less persuasive. There the plaintiff wasinjured when she lost control after skiing over ice on the trail;there was no issue of wrongful death. In a parentheticalaccompanying its citation to Grass, the court states "G.L.c.143, § 71H-71S governs actions for personal injuries, but not forwrongful death." Spinale, at 141. This loose description of theGrass holding clearly refers only to the statute of limitationsportion of section 71P, not the entire act.

Courts of this state have recognized that the Legislativeintent in passing the MSSA was "to decrease the economic threatto the ski industry by limiting an operator's liability, whilemaking the sport safer by requiring operators to implementgreater safety precautions." Atkins, at 84, quoting, SkiOperators and Skiers — Responsibility and Liability, 14 New Eng.L. Rev. 260, 271 (1978). "The Legislature is given broad latitudein determining how best to ensure safety while at the same timecontrolling liability." McHerron, 422 Mass. at 679; see also,Guzman v. MRM/Elgin, 409 Mass. 563, 567 N.E.2d 929 (1991). The MSSA "embodies the Legislature's judgment that itwould be both physically impossible and economically intolerableto require ski areas to guard against and assume responsibilityfor the negligence of their patrons." Tilley v. Brodie MountainSki Area, 412 Mass. 1009, 1010 (1992). The MSSA therefore"represents the legislature's judgment as to the proper balancebetween the skier's need for safety and the ski area operator'seconomic survival." McHerron, at 679.

The passing references cited by the plaintiffs provideinadequate support for the dramatic reduction in the scope of theact they argue for. If the substantive provisions of the MSSAfall to the wayside, thus permitting liability to attach where askier dies rather than is merely injured, a ski resort operatorwould be left to protect against all possible injuries lestthey prove to be fatal. Such a result would be inconsistent withthe clear intent of the statute.

The decision to certify a question to a state's highest court"rests in the sound discretion of the federal court." LehmanBrothers v. Schein, 416 U.S. 386, 391 (1974). As the courts ofthis district have counseled, "[i]t `is inappropriate for afederal court to use [certification] when the course the statecourts would take is reasonably clear.'" Stewart v.Milford-Whitinsville Hosp., 349 F. Supp. 2d 68, 70 (D. Mass.2004) (court holding that certification of question wasinappropriate), quoting Fischer v. Bar Harbor Banking andTrust Co., 857 F.2d 4, 8 (1st Cir. 1988). The state of the law regarding application of the MSSA to wrongful death actions isreasonably clear. Certification of a question to the SJC would,therefore, not be proper.

In the event that the court finds that the MSSA applies, theplaintiffs next argue that a ski area operator like the defendantmay be held to a higher standard where it voluntarily assumesduties not imposed by the MSSA. Plaintiffs point to the fact thatJiminy Peak had a policy of warning of icy conditions, closingtrails when they became unsafe to ski, and padding some obstaclesnear the sides of the trails. While icy conditions and objectsoff the side of the trail may be dangers inherent in skiing thatthe area operator is not responsible for under the MSSA,negligence in failing to warn of these conditions or inprotecting skiers from these objects may — the plaintiffs contend— form a basis for liability when a defendant voluntarily assumesthe duty to take reasonable action to reduce or eliminate theserisks.

Massachusetts has recognized, in some circumstances, theconcept of voluntary assumption of duties. Cottam v. CVSPharmacy, 436 Mass. 316, 323 (2002). These circumstances have,however, been defined fairly narrowly and involve a fact-specificinquiry. Id. at 324. Cottam was a case in which the defendantpharmacy included detailed warnings on its prescription druglabels. The court held that CVS, by including the more detailedwarnings on its labels, had assumed a voluntary duty to providecomplete warnings and information to its customers and was negligent for failing to warn the plaintiff adequately. Cf.,Frye v. Medicare-Glasser Corp., 1523 Ill. 2d 26, 605 N.E.2d 557(1992) (court holding that a drug store did not voluntarilyassume a duty by merely placing a warning that the drug may causedrowsiness).

Prominent in the Cottam court's reasoning was that "thepatient could reasonably interpret the warning form as a completeand comprehensive list of all known side effects, [and that] itis appropriate to impose on the pharmacy a duty commensurate withwhat it appeared to have undertaken." Davis, at 325. Given theconstantly changing conditions that exist on ski slopes thataffect the risks inherent in the sport of skiing, Jiminy Peak'seffort to warn of icy conditions, close trails, or pad on-trailobstacles could not, as a matter of law, be considered a"complete and comprehensive list of all known" hazards so as toimpose additional duties.

Courts have frequently held that defendants have not assumedvoluntary duties because of their decision to undertakeadditional tasks. In Davis v. Westwood Group, 420 Mass. 739,652 N.E.2d 567 (1995), the SJC found that the defendant dogracing track had not assumed an expanded duty to protectpedestrians because it had hired a police officer to monitorcrosswalks along a highway. The court rejected the plaintiff'scontention that Westwood, by employing the police officers,"undertook a much broader duty — that of providing safepedestrian passage across" the street. Davis, at 747. Instead,the court opined that to impose such a broad duty would be "unreasonably onerous" andagainst public policy. Id.; see also, Smith v. RobertshawControls Co., 410 F.3d 29 (1st Cir. 2005) (court holding noliability based on theory of voluntary duty imposed on gascompany because of its "GAS Check" inspection service, which wasnot performed during a service call at plaintiff's residencefollowing a report of gas smell outside).

There is no authority that counsels this court to apply theprinciple of voluntary assumption of duty to this factualsituation, nor does the substance of the MSSA and the intentunderlying it support such action. The language of the statute isclear: "in any action brought against a ski area operator basedon negligence, it shall be evidence of due care where the conductof an operator has conformed with the provisions of this chapteror rules or regulations of the [recreational tramway] board madepursuant to section seventy-one J." Mass. Gen. Laws ch.143, § 71P. There is simply nothing to suggest that a defendant shouldlose the protection of the MSSA because it chose to do more thanit was required.

Ironically, imposing liability on ski area operators for dutiesvoluntarily assumed but negligently performed would undercut akey goal of the MSSA, which is to "increase skier safety by`requiring operators to implement greater safety precautions.'"Eipp, 154 F.Supp.2d at 113; quoting, Tilley,412 Mass. at 1009. The result of the plaintiffs' argument, if accepted, wouldbe to discourage ski operators from doing anything more than the minimum required of them under the MSSA.This impairment of safety would be "obviously inconsistent withthe underlying Legislative intent" of the Ski Safety Act.Spinale, 1995 Mass.App.Div. at 142. A ski operator should bepermitted, if not encouraged, to provide a level of safetygreater than what is provided for under the MSSA without theconcern that doing so will make them vulnerable to an enhancedlevel of liability.

The Eipp holding cannot be read, as the plaintiffs argue, toimpose liability for the voluntary assumption of duties by theoperator. It is true that in that case the court made referenceto the defendant's decision to pad equipment on certain trailsbut not others as evidence of their breach of a voluntarilyassumed duty. However, the court also observed that the MSSAshielded ski operators from liability for injuries "which ariseout of the risks inherent in the sport of skiing." The courtconcluded that "[t]he presence of a snowgun in the middle of thetrail does not appear to fall into this category" of inherentrisks. Eipp, at 116; see also Diehl v. Catamount Ski Area,Inc., No. 89-30006-F, 1990 WL 72073, at *3 (D. Mass. May 23,1990) (discussing that `risks inherent in the sport of skiing'are those natural conditions that are "beyond the control of theski area operators or the skier").

In this case, Matthew encountered icy conditions that causedhim to lose control, veer off the trail, and collide with anobject — either man-made or natural — that was outside the skiing area. Unlike the snowgun in Eipp, the hazard thatMatthew encountered was a condition explicitly enumerated in theMSSA.1 The snowgun is also distinguishable in that it,unlike the utility pole or tree here, was "in the middle of [the]ski trail" Eipp, at 116. What Matthew collided with was off thetrail. The two situations are simply not comparable.

In sum, even viewing the facts in the light most favorable tothe plaintiffs it is evident that Jiminy Peak complied with, andin some cases exceeded, the minimum safety standards enumeratedin the MSSA. Defendant is therefore entitled to summary judgmentas to Count One of the complaint.

The plaintiffs' claim in Count Two is for the conscious painand suffering of Matthew caused by Jiminy Peak's failure tolocate him for more than two hours after the accident. As noted,the unanimous medical evidence is that Matthew's collision withthe object off the trial inflicted bodily injuries thatinevitably led to his death. Any negligence on the part of JiminyPeak in failing to locate him was not a causal factor in hisultimate death.

There is, however, a dispute of material fact as to whetherMatthew was conscious at the time he was found by ski patrollerRud. If Matthew was conscious and responding to Rud, as some of the evidence suggests, then it would be reasonable for a jury tofind Jiminy Peak's negligence extended or exacerbated thesuffering Matthew endured because of the delay in locating him.Summary judgment on Count Two, therefore, is not appropriate.

Finally, the testimony and report of the plaintiffs' expert,Helge Lien, is not relevant to the sole remaining issue in thecase. While the court makes no determination of the witness'squalifications or expertise on the subject matter of his report,it need not do so. It is clear that Mr. Lien's opinions are thatJiminy Peak's negligence was the proximate cause of Matthew'sdeath. As has already been discussed, this claim is nowforeclosed. It is therefore unnecessary for the court to addressthe admissibility of the Mr. Lien's report and testimony.


For the foregoing reasons, the defendant's Motion for SummaryJudgment (Docket No. 20) is hereby ALLOWED on Count One of theComplaint and DENIED on Count Two; and its Motion to Strike(Docket No. 23) is DENIED as moot. The plaintiffs' motion tocertify a question to the Supreme Judicial Court (Docket No. 37)is DENIED. The clerk will set this case for a status conferenceto determine further proceedings.

It is So Ordered.

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