Finnern v. Sunday River ( 1993 )


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  • USCA1 Opinion









    February 9, 1993
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________


    No. 92-1625

    JAMES FINNERN, M.D.,

    Plaintiff, Appellant,

    v.

    SUNDAY RIVER SKIWAY CORPORATION,
    d/b/a/ Sunday River Ski Resort,

    Defendant, Appellee.


    ____________________

    ERRATA SHEET
    ____________________



    The opinion issued January 29, 1993, should be corrected as
    follows:


    P. 15, 1. 22 reads in part: "[S]ki resorts are, if not"; it
    should read in that pertinent part: "[S]ki resorts are
    precisely". The corrected sentence will read: "not have come as
    a surprise to Finnern. Ski resorts are precisely".
































    January 29, 1993
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________


    No. 92-1625

    JAMES FINNERN, M.D.,

    Plaintiff, Appellant,

    v.

    SUNDAY RIVER SKIWAY CORPORATION,
    d/b/a/ Sunday River Ski Resort,

    Defendant, Appellee.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. D. Brock Hornby, U.S. District Judge]
    ___________________

    ____________________

    Before

    Cyr, Circuit Judge,
    _____________
    Bownes, Senior Circuit Judge,
    ____________________
    and Fuste,* District Judge.
    ______________

    ____________________

    Richard L. O'Meara with whom Peter L. Murray, Murray, Plumb, &
    ___________________ ________________ ________________
    Murray, Alan E. Richman, John J. Coates, and Breit, Best, Richman, &
    ______ _______________ _______________ ________________________
    Bosch were on brief for appellant.
    _____
    Keith A. Powers with whom Elizabeth A. Olivier, and Preti,
    ________________ ______________________ ______
    Flaherty, Beliveau & Pachios were on brief for appellee.
    ____________________________

    ____________________


    ____________________

    _____________________

















    *Of the District of Puerto Rico, sitting by designation.



































































    FUSTE, District Judge. Plaintiff, an injured skier,
    ______________

    argues that a ski area operator negligently maintained a tree in

    a particular area of a Maine ski slope and that the ski resort

    negligently failed to post a warning sign alerting skiers to the

    presence of a converging trail. Plaintiff alleges that these

    negligent acts proximately caused him to suffer serious injuries

    in a skiing accident.

    Plaintiff originally brought a five-count negligence

    action against the ski resort seeking damages. Two of the five

    counts, loss of consortium and emotional distress brought on

    behalf of plaintiff's spouse, were voluntarily dismissed. Based

    on considerations of state law,1 the district court dismissed

    two more counts alleging negligent tree location or placement and

    slope arrangement for failure to state a claim on which relief

    could be granted. Also, the court denied plaintiff's motion to

    amend the tree placement count in order to allege additional

    facts. Finally, the district court found the warning-sign count

    adjudicable; however, finding no material fact was in dispute,


    ____________________

    1The Maine legislature enacted the Skiers' and Tramway
    Passengers' Responsibilities Act, 26 M.R.S.A. 488 (1991),
    to limit the liability of Maine's ski area operators. The
    statute provides that skiers assume risks while skiing on
    the state's slopes and immunizes ski resorts from legal
    responsibility for skiing injuries "unless the injury or
    death [is] actually caused by the negligent operation or
    _________
    maintenance of the ski area by the ski area operator, its
    ___________
    agents or employees." Id. (emphasis added). Although the
    __
    statute itself does not define "operation or maintenance,"
    the district court found issues of negligent slope design to
    ______
    be outside the scope of the statute's liability limitation
    exception. Finnern v. Sunday River, Civil No. 91-0065-P-H,
    _______________________
    slip op. at 3 (D. Me. Nov. 28, 1991).

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    the court granted summary judgment -- in favor of defendant ski

    area operator. Plaintiff appeals the district court's

    dismissals, denial of motion to amend, and summary judgment

    decision. For reasons explained below, we affirm the district
    affirm

    court in all relevant respects.

    I.
    I.

    FACTS
    FACTS
    _____

    James Finnern, M.D.,2 ("Finnern") and his wife, Denise

    Finnern, were skiing down an intermediate slope, Dream Maker, at

    Sunday River Ski Resort3 ("Sunday River") in Newry, Maine, on

    March 1, 1989. The Finnerns had previously skied the Dream Maker

    slope during the three days preceding the accident and had just

    finished negotiating Dream Maker immediately before the fateful

    run. Finnern considered his skiing ability at the time to be

    somewhere between high-intermediate and low-expert levels.

    As Finnern descended the slope, he allegedly saw three

    relatively slow-moving or stopped skiers approximately 100 to 150

    feet downslope, who apparently had entered Dream Maker from a

    converging beginners' trail, Ridge Run. Since, as Finnern

    claims, he was not apprised of the convergence of Dream Maker and

    Ridge Run with a sign, and was unaware of the imminence of the

    converging slope, he was shocked and surprised by the appearance

    ____________________

    2Federal jurisdiction is appropriate. Finnern is a resident
    of Colorado, and Sunday River is a corporation centered and
    located in Maine, and the amount in controversy exceeds
    $50,000. Thus, diversity jurisdiction is satisfied. 28
    U.S.C. 1332.

    3Also referred to as Sunday River Skiway Corporation.

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    of the Ridge Run skiers. In order not to collide with or startle

    the slow-moving skiers below him, Finnern made a conscious

    decision to change course. He successfully avoided the other

    skiers by at least thirty feet. Finnern, however, while claiming

    to be in reasonable control of his movements, came upon an

    ordinary mogul that sent him into the air. The loss of control

    occasioned by the mogul jump or landing resulted in his losing a

    ski and, unfortunately, in his crashing into a tree near the

    periphery of the slope. He came to rest after hitting the tree

    and gliding a distance down the trail. Finnern sustained severe

    injuries.

    The tree at issue is located near the tree line and

    boundary of the slope, but is a few feet nearer the trail than

    the other peripheral trees. Finnern alleges that the proximity

    of the tree to the edge of the trail proximately caused his

    accident, and represents an issue of negligent maintenance or

    operation -- actionable under state law. Finnern also claims

    that the lack of a warning sign was a substantial factor leading

    to his injuries. Defendant further argues that there was a

    diagrammatic sign indicating an upcoming convergence.

    Defendant ski area operator contends that the tree is

    not unusually positioned and is like many other trees on the

    slopes of Maine's many ski areas. Defendant also claims that ski

    areas are exposed to very limited liability under 26 M.R.S.A.

    488 (1991), and that plaintiff legally assumed certain risks when

    he decided to go skiing, one of which was collision with a tree.


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    II.
    II.

    PROCEDURAL HISTORY
    PROCEDURAL HISTORY
    __________________

    The skiing accident led to three separate decisions by

    the federal district court. Following the voluntary dismissal of

    the two counts touching on Mrs. Finnern's claims of injury, the

    district court, on November 5, 1991, dismissed the two tree-

    related counts. It dismissed on the ground that state law

    exempted ski resorts from liability based on slope design.

    However, the court denied defendant's motion to dismiss the

    warning-sign count because it raised legitimate, adjudicable

    issues, namely negligent operation and maintenance of ski slopes

    under 26 M.R.S.A. 488 (1991).

    The second facet of this appeal stems from the district

    court's February 14, 1992, denial of plaintiff's motion to amend

    Count II with additional factual expositions regarding negligent

    tree location. Plaintiff argues that the new information would

    have prevented the court from dismissing Count II of the

    complaint. The third district court decision on appeal is the

    April 22, 1992, order granting defendant's motion for summary

    judgment on the remaining count pertaining to the lack of a

    convergence warning sign. The court found no issue of material

    fact in dispute and entered judgment for the ski resort.

    We are asked to review these three district court

    orders but, before addressing each segment of the appeal in turn,

    we discuss the state law limiting ski resort liability and, in




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    general terms, the rationale behind the assumption of risk

    doctrine underlying Maine's statute.

    III.
    III.

    INHERENT RISKS OF SKIING AND
    INHERENT RISKS OF SKIING AND
    ____________________________
    DISMISSAL OF SLOPE DESIGN COUNTS
    DISMISSAL OF SLOPE DESIGN COUNTS
    ________________________________

    A. Risks of Alpine Skiing
    A. Risks of Alpine Skiing
    ______________________

    Maine, like many other states, has given legislative

    notice that downhill snow skiing involves significant risk of

    injury.4 Despite acknowledged risks, many people find

    irresistible the danger inherent in the sport of skiing, one of

    the many human challenges to nature's wrath.

    Because skiing is dangerous, and since people enjoy and

    engage in the sport in spite of the danger, the legislature of

    the state of Maine, like many others, decided to enact a statute

    to limit ski area operators' liability and to define the

    assumption of risk, general responsibilities, duties, and

    liabilities of skiers and ski resorts generally:

    It is hereby recognized that skiing as a
    recreational sport and the use of passenger
    tramways associated therewith may be
    hazardous to skiers or passengers, regardless

    ____________________

    4See 26 M.R.S.A. 488 (1991) (Maine's law regarding skier
    ___
    assumption of risk and ski resort liability limitations).
    Many states have enacted laws limiting liability of ski area
    operators, and defining the duties of operators and skiers.
    See, e.g., Alaska Stat. 09.17.060, 09.65.135 (1992)
    ___ ____
    (relative liability of ski resorts and skiers); Colo. Rev.
    Stat. 109 (1992) (duties of skiers and penalties); Colo.
    Rev. Stat. 112-13 (1992) (limitations on ski area operator
    liability for inherent dangers of skiing); Conn. Gen. Stat.
    29-212 (1990) (skiers' assumption of risk); Idaho Code
    6-1107 (1992) (limitations of liability of ski area
    operators); Idaho Code 6-1109 (1992) (liability of
    skiers).

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    of all feasible safety measures which can be
    taken. Therefore, each skier shall have the
    sole responsibility for knowing the range of
    his own ability to negotiate any slope or ski
    trail, and it shall be the duty of each skier
    to conduct himself within the limits of his
    own ability, to maintain control of his speed
    and course at all times while skiing, to heed
    all posted warnings, and to refrain from
    acting in a manner which may cause or
    contribute to the injury of himself or
    others. Except as otherwise specifically
    provided in this subchapter, each skier who
    __________
    participates in the sport of skiing shall be
    deemed to have assumed the risk of the
    ___________________________
    dangers inherent in the sport and assumed the
    ________________
    legal responsibility for any injury to his
    person or property arising out of his
    participation in the sport of skiing, unless
    ______
    the injury or death was actually caused by
    _____________________________________________
    the negligent operation or maintenance of the
    _____________________________________________
    ski area by the ski area operator, its agents
    _________________________________
    or employees. Except as provided in this
    section, the responsibility for collisions by
    any skier while actually skiing, with any
    person or object, shall be solely that of the
    skier or skiers involved in collision and not
    that of the ski area operator. This section
    shall not prevent the maintenance of an
    action against a ski area operator for the
    negligent design, construction, operation or
    maintenance of a tramway.

    Skiers' and Tramway Passengers' Responsibilities, 26 M.R.S.A.

    488 (1991) (emphasis added). An understanding of Maine's

    statutory effort to limit ski area operator liability in skiing

    accidents is essential in our review of the district court orders

    on appeal.

    B. Dismissal of Two Counts As
    B. Dismissal of Two Counts As
    __________________________
    Design Issues Under Maine Law
    Design Issues Under Maine Law
    _____________________________

    The standard for reviewing a Rule 12(b)(6) dismissal is

    clear: "[a] complaint is to be construed in the light most

    favorable to the plaintiff; dismissal is appropriate only if 'it


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    appears beyond doubt that the plaintiff can prove no set of facts

    in support of his claim which would entitle him to relief.'"

    Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir. 1987)
    ______________________________

    (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1987)). See also
    ________________ ________

    Miranda v. Ponce Federal Bank, 948 F.2d 41, 43 (1st Cir. 1991);
    ______________________________

    Feinstein v. Resolution Trust Corp., 942 F.2d 34, 37 (1st Cir.
    ____________________________________

    1991); Correa-Mart nez v. Arrillaga-Bel ndez, 903 F.2d 49, 51
    ______________________________________

    (1st Cir. 1990); Dartmouth Review v. Dartmouth College, 889 F.2d
    _____________________________________

    13, 16 (1st Cir. 1989). If a trial court accepts plaintiff's

    facts and can envision no reasonable application of the law that

    would entitle plaintiff to relief, the court may rightly dismiss

    the case. In our review of the district court's dismissal of

    Counts II and III, we must determine whether the facts supportive

    to plaintiff, the applicable law, and the interpretation of the

    law justly support dismissal.

    In the case at hand, defendant Sunday River moved in

    the district court to dismiss all three remaining counts of

    Finnern's complaint for failure to state a claim. Specifically,

    Sunday River argued that Counts II and III of the complaint state

    causes of action for slope design negligence and not for

    maintenance or operation negligence, a statutorily significant

    distinction. See 26 M.R.S.A. 488 (1991).
    ___

    Section 488, Maine's statute entitled Skiers' and

    Tramway Passengers' Responsibilities, greatly limits liability of

    ski area operators, excepting only liability of ski resorts if
    _________ ____

    "the injury or death [is] actually caused by [] negligent


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    operation or maintenance . . . ." 26 M.R.S.A. 488 (1991)
    _________ ___________

    (emphasis added). The law not only limits ski resorts'

    liability, but the statute also emphasizes that skiers assume a

    significant amount of risk in engaging in the inherently risky

    sport of skiing.5 Section 488 clearly states that skiers should

    know their abilities and the ever-present dangers inherent to

    skiing. Id.
    ___

    The law is clear that a Maine ski area operator like

    Sunday River may only be held legally liable if its alleged

    actions or inactions involved negligent operation or maintenance.

    The district court interpreted this statutory provision to

    "preclude[] any action for negligent design of the slopes and

    trails of a ski area." Finnern v. Sunday River, Civil No. 91-
    _______________________

    0065-P-H, slip op. at 3 (D. Me. Nov. 28, 1991) (citation

    omitted). We agree as a matter of law that design questions do

    not fall within the statutory operation-or-maintenance exception.

    Our review of the district court's dismissal of Counts II and

    III, therefore, must focus on whether the facts as seen in the

    light most favorable to plaintiff support an operation-or-

    maintenance exception to Maine's bar on liability for ski area

    ____________________

    5Assumption of risk is one of the legal terms of art that is
    relatively self-explanatory. Relevant to this case, Prosser
    and Keeton note the following on assuming risks: "[T]hose
    who participate or sit as spectators at sports and
    amusements may be taken to assume the known risks of being
    hurt by roller coasters, flying baseballs, hockey pucks,
    golf balls, wrestlers, or such things as fireworks
    explosions. Cardozo once summarized all this quite neatly:
    'The timorous may stay at home.'" W. Page Keeton et al.,
    Prosser and Keeton on the Law of Torts 68, at 485-86 (5th
    ______________________________________
    ed. 1984) (citations omitted).

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    operators, or whether the facts as viewed through a plaintiff-

    friendly lens allege a nonactionable design fault.

    In regard to Counts II and III, the district court did

    identify the facts most favorable to plaintiff Finnern. In fact,

    the trial court accepted the facts as delineated by Finnern's

    complaint, such as the location of the tree, the confluence of

    the two slopes, and Finnern's controlled skiing. The district

    court, however, found unnecessary a lengthy discussion of the

    facts because as a matter of law, the court held that even

    accepting plaintiff's factual allegations in Counts II and III,

    "[a]llowing the tree in question to be present within the

    traveled portion of the Dream Maker trail was obviously a design

    decision rather than an aspect of operation or maintenance."

    Finnern v. Sunday River, Civil No. 91-0065-P-H, slip op. at 3 (D.
    _______________________

    Me. Nov. 5, 1991).

    We agree as a matter of law that the tree's position as

    described by plaintiff's facts, along with the slope's allegedly

    defective form and angle, are actually averments implicating ski

    area design, and not operation or maintenance.6 Examples of

    ____________________

    6We note this case appears to be unlike a recent decision
    from the same district in which the court denied a motion to
    dismiss in a context of a set of facts similar to the ones
    in this case. See S nchez v. Sunday River Skiway Corp.,
    ___ ____________________________________
    1992 U.S. Dist. LEXIS 15616, (D. Me. Sept. 28, 1992). We
    compare the two cases without passing any judgment on
    S nchez; we have only seen the district court opinion and
    _______
    not a page of the trial record.
    In S nchez, the ski resort left a tree stump intact
    _______
    thirty feet into the skiing area of a slope. On the motion
    for dismissal, the district court determined that the relief
    asked for could conceivably be granted. The motion for
    dismissal was denied since a legitimate argument could be

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    negligent operation or maintenance would include placing a snow

    blower or other machine in a precarious position on a slope

    without proper warning, or failing to notify skiers that a

    particular slope had been closed due to poor or dangerous trail

    conditions. But tree placement along the periphery of slopes,

    trail direction, curvature, and degree of inclination, as well as

    myriad other ordinary properties of ski areas, are presumptively

    design issues. If tree placement or location along the periphery

    of trails were actionable, ski area operators and skiers

    themselves might find themselves out in the cold. As a

    California appeals court observed in a tree collision case:

    The tree itself provided a warning to
    plaintiff of the implicit danger of a
    collision with it. A fortiori, [the ski
    resort] was under no duty to remove it. One
    could ask, if there were a duty to remove
    trees along the edges of ski runs, "which
    trees?" Such a solution, if followed to its
    logical conclusion . . . would finally lead
    to cutting down every tree on the mountain.

    Danieley v. Goldmine Ski Assocs., 218 Cal. App. 3d 111, 122
    ___________________________________

    (1990). Finding the location of the tree in question and the

    layout of the surrounding slope to be design issues as a matter

    of law, we need not reach an assessment of defendant's negligence

    in implementing those decisions. Sunday River cannot be held

    liable for such decisions or actions under Maine law.



    ____________________

    made, according to the district court, that maintenance and
    operation decisions should have caused the stump's removal
    or marking. In this case, however, maintenance purposes
    ____________________
    have not caused a partial removal of the tree, as may have
    been the case with the stump scenario in S nchez.
    _______

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    We affirm the district court's dismissal of Counts II

    and III for failure to state a claim upon which relief could be

    granted pursuant to Maine law. 26 M.R.S.A. 488 (1991).7

    C. Denial of Motion to Amend Count II
    C. Denial of Motion to Amend Count II
    __________________________________

    A party may amend "as a matter of course" in certain

    circumstances, "[o]therwise a party may amend the party's

    pleading only by leave of court or by written consent of the

    adverse party; and leave shall be freely given when justice so

    requires." Fed. R. Civ. P. 15(a).

    Our standard for reviewing district court decisions

    regarding denials of motions to amend is widely known and

    applied. Unless we find an abuse of discretion in a trial
    ____________________

    court's decision to deny a motion to amend, we defer to the

    district court's superior ability to weigh the potential

    amendments against the existing factual record and legal context.

    The decision to grant or deny a motion to amend pleadings is

    rightly "left to the broad discretion of the district court."

    Coyne v. Somerville, 972 F.2d 440, 446 (1st Cir. 1992). However,
    ___________________

    "a district court's denial of a chance to amend may constitute an

    abuse of discretion if no sufficient justification appears. See
    ___________________ ___

    Foman v. Davis, 371 U.S. 178, 182 (1962)." Correa-Mart nez v.
    _______________ __________________


    ____________________

    7We recently faced a similar set of issues in Berniger v.
    ___________
    Meadow Green-Wildcat Corp., 945 F.2d 4 (1st Cir. 1991). In
    __________________________
    that case, inter alia, we upheld the dismissal of a
    __________
    plaintiff's claim for injuries sustained in a collision with
    a man-made obstruction on the side of a skiing trail. A New
    Hampshire statute bars suits against ski area operators for
    "inherent risk" accidents in the sport of skiing. See N.H.
    ___
    Rev. Stat. Ann. Ch. 225-A:24.

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    Arrillaga-Bel ndez, 903 F.2d 49, 59 (1st Cir. 1990) (citing Foman
    __________________ _____

    v. Davis, 371 U.S. 178, 182 (1962)) (emphasis added).
    ________

    Plaintiff Finnern argues that he should have been able

    to amend Count II of his complaint to provide additional factual

    information. Finnern contends that the information may have

    persuaded the district court that as a matter of law the tree

    placement issue could reasonably be interpreted as an operation

    or maintenance problem and therefore was better left for a trial

    on the merits rather than a court-ordered dismissal.8 In

    denying plaintiff's motion to amend, the district court

    succinctly stated that the "amendments, even if permitted, would

    not change the [c]ourt's decision to dismiss Count II." Finnern
    _______

    v. Sunday River, Civil No. 91-0065-P-H, slip op. at 1 (D. Me.
    _______________

    Feb. 14, 1992).

    The district court's denial of Finnern's motion

    indicates that the proposed amendments, in the judgment of the

    trial court, provided only additional support for the facts and

    arguments already set forth by the pleadings. In other words,

    more design information about the placement or location of the
    ______

    tree or the form of the slope would still fail to state a

    colorable claim under section 488 of the Maine law. As we noted

    ____________________

    8Finnern attempted to cure his complaint by alleging that
    the tree at issue was marked with a blue stripe indicating
    it was a "land boundary" tree. Finnern suggested that part
    of the ski resort's land was leased and the other part owned
    by the resort. If the tree with which Finnern collided had
    been deliberately left on the slope for the purpose of
    providing a boundary marker between two distinct tracts of
    land, Finnern argues the tree's placement was an operations
    or maintenance concern and not a design matter.

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    in Correa-Mart nez, 903 F.2d at 59, "[w]here an amendment would
    _______________

    be futile or would serve no legitimate purpose, the district

    court should not needlessly prolong matters." After examining

    the record and relevant law in the case at hand, we find nothing

    approaching an abuse of discretion on the part of the district

    court in denying the motion to amend. We affirm the denial of
    affirm

    plaintiff's motion to amend Count II.

    IV.
    IV.

    REVIEW OF THE DISTRICT COURT'S GRANT OF
    REVIEW OF THE DISTRICT COURT'S GRANT OF
    _______________________________________
    SUMMARY JUDGMENT ON COUNT I
    SUMMARY JUDGMENT ON COUNT I
    ___________________________

    Having addressed the appeal of the dismissal of Counts

    II and III and of the denial of the motion to amend Count II, we

    lastly review Finnern's appeal of the district court's grant of

    summary judgment on the warning-sign count in favor of Sunday

    River. Our review of a district court's grant of summary

    judgment is plenary. See Griggs-Ryan v. Smith, 904 F.2d 112, 115
    ___ ____________________

    (1st Cir. 1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st
    __________________________

    Cir. 1990), later proceeding Garside v. Osco Drug, Inc., 764 F.
    ________________ __________________________

    Supp. 208 (D. Mass. 1991), rev'd, Garside v. Osco Drug, Inc.,
    _____ ____________________________

    1992 U.S. App. LEXIS 24370 (1st Cir. 1992). However, because of

    the clarity of the disposition in this case, we need not repeat

    every detail of the proceedings below, other than the factual and

    legal findings crucial to a judgment on this segment of Finnern's

    appeal.

    The appropriate standards for granting and reviewing

    summary judgments are clear. "Summary judgment is appropriate

    where 'the pleadings, depositions, answer to interrogatories, and

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    admissions on file, together with the affidavits, if any, show

    that there is no genuine issue as to any material fact and that

    the moving party is entitled to judgment as a matter of law.'

    Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477
    ________ _________________________

    U.S. 317, 323 (1986); Aponte-Santiago v. L pez-Rivera, 957 F.2d
    ________________________________

    40 (1st Cir. 1992)." Garside v. Osco Drug, Inc., 1992 U.S. App.
    ___________________________

    LEXIS 24370, at *1-2 (1st Cir. Sept. 30, 1992).

    We, like the district court, find no material fact in

    dispute in regard to Count I. In brief, Finnern claims to have

    been in control of his skiing on the Dream Maker run. He had

    sufficient time to consider in a rational manner his options upon

    seeing slow-moving skiers below him.9 In fact, he had at least

    100 to 150 feet advance notice of the positions of the Ridge Run

    skiers. He made a considered judgment to ski around them so as

    not to startle them. Finnern not only succeeded in avoiding the

    other skiers, but he also did so by at least thirty feet.

    As Maine law dictates, other skiers on the slopes of

    the state's ski areas are an inherent risk assumed by skiers. 26

    M.R.S.A. 488 (1991). With the facts that we consider material

    to a decision on the warning-sign charge of Count I -- even with

    the facts as presented by Finnern -- we agree with the district

    court's grant of summary judgment for Sunday River. A warning

    sign would have afforded Finnern no significant additional notice

    of the presence of the Ridge Run skiers, and Sunday River had no


    ____________________

    9The exact position of the Ridge Run skiers is a fact in
    dispute; however, it is immaterial to our decision here.

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    duty to warn Finnern of each and every inherent danger on the

    slopes.

    The appearance of the other skiers on Dream Maker

    should not have come as a surprise to Finnern. Ski resorts are

    precisely social, recreational areas with many downhill skiers.

    Maine's liability-limiting statute reflects this fact. We,

    therefore, cannot envision a judge or jury who could reasonably

    find that Finnern's accident was a result of, or partially caused

    by, the lack of a convergence sign on Dream Maker. While it is

    unfortunate that Finnern's choice of path around the Ridge Run

    skiers led him to collide with a tree, Sunday River is not

    legally responsible. We affirm the grant of summary judgment in
    affirm

    favor of defendant.

    V.
    V.

    CONCLUSION
    CONCLUSION
    __________

    We agree with the district court that no material fact

    is in dispute with respect to Count I, the warning-sign charge.

    In addition, we believe the district court correctly granted

    defendant's summary judgment motion as to Count I in favor of

    defendant Sunday River.

    We also find no actionable, negligent behavior on the

    part of the ski resort in its operation or maintenance of Dream

    Maker. Plaintiff Finnern did not meet his statutory burden of

    demonstrating that an action for maintenance or operation
    ___________ _________

    negligence existed as required by relevant law in the state of

    Maine. With or without the amendments to the complaint,


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    plaintiff makes a slope design argument in Counts II and III
    ______

    according to section 488 and reasonable judicial inferences. Ski

    area operators in Maine are simply not liable for the design of

    their slopes under state law. We, therefore, affirm the district
    affirm
    ______

    court's decisions.

    So Ordered.
    __________










































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