Gilbert v. Sunday ( 1997 )

USCA1 Opinion

                                [Not for Publication]

                            United States Court of Appeals

                                For the First Circuit

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        No. 97-1375



                                  DIANA M. GILBERT,



                                Plaintiff, Appellant,



                                          v.



                              SUNDAY RIVER SKIWAY CORP.,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



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



                                 Stahl, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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            Alton C. Stevens with  whom Marden, Dubord, Bernier & Stevens  was
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        on brief for appellant.

            Evan M. Hansen with  whom Elizabeth J. Wyman and Preti,  Flaherty,
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        Beliveau & Pachios were on brief for appellee.
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                                   October 22, 1997

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                      Per Curiam.    This   appeal   raises   an  unusual
Per Curiam.
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            argument:  that  the  district  court's  jury   instructions,

































            although     correctly   summarizing  the   controlling  law,



            described a  legal issue not  generated by the  evidence, and



            therefore were so likely to have confused the jury that a new



            trial is warranted.  We reject this argument and affirm.



                      On  March   10,  1994,   plaintiff/appellant  Diana



            Gilbert participated in  the Guaranteed Learn to  Ski Program



            at   Sunday  River,  a   ski  area  owned   and  operated  by



            defendant/appellee Sunday  River  Skiway  Corporation.    The



            instructor assigned to plaintiff's novice  class first taught



            Gilbert and two others basic skiing techniques, including how



            to  stop and  turn.   Because the  lift customarily  used for



            class was not  operating, the instructor took the  group on a



            lift  that  went  higher  on the  mountain  than  the  normal



            beginners slope.   The instructor then directed  the students



            to   ski  down  to  the   beginners  area  usually  used  for



            instruction.   On  her first  turn,  Gilbert accelerated  too



            quickly and fell, injuring her knee.  This suit followed.



                      The   Maine   Skier's   and   Tramway   Passengers'



            Responsibilities  Act ("MSTPRA"),  26 M.R.S.A.    488 (1988),



            states  that "each  skier who  participates in  the sport  of



            skiing  shall be  deemed  to  have assumed  the  risk of  the



            dangers inherent in the sport . . . ."  Although  section 488



            is designed to protect ski area operators from  liability for



            skiers' injuries,  the  statute contains  an  exception  that



            imposes liability on a ski area when the skier's injuries are







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            "actually caused by the negligent operation of the ski area."



            Id.   Gilbert  presented evidence  to the  jury that  the ski
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            instructor  brought her to  a slope that was  too steep for a



            first-time skier and that this conduct constituted  negligent



            operation of the ski area.



                      At  the close  of  the  evidence,  and  after  some



            deliberation,  the   district  court  charged  the   jury  by



            paraphrasing section 488.  The charge stated:



                      Maine  law  provides  that  everyone  who

                      participates  in  the   sport  of  skiing

                      assumes the  risk of dangers  inherent in

                      the  sport  and  responsibility  for  any

                      injury  unless  the injury  was  actually

                      caused by the  negligent operation of the

                      ski  area.   In this case,  the plaintiff

                      Diana Gilbert  claims that  the defendant

                      Sunday    River     Skiway    Corporation

                      negligently  operated  its  ski  area  in

                      instructing  her   where  to  ski   as  a

                      beginner enrolled in the Guaranteed Learn

                      to  Ski Program,  and  that  it was  this

                      negligence  that  caused her  injury  and

                      damages that she now seeks to recover.

                                         ...

                      If you find that Sunday River was not

                      negligent or that its negligence did not

                      cause Diana Gilbert's injuries, then your

                      verdict must be for Sunday River.



            Gilbert seasonably objected to the instruction.  The jury



            returned a verdict that Sunday River was not negligent.



                      Gilbert concedes that the district court's



            instruction does not misstate or misdescribe the Maine skier



            statute in any way.  Rather, Gilbert argues that, because



            section 488 arguably does not require the jury to decide



            whether she had assumed the risk of her injuries, the court's





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            reference to assumption of the risk was so confusing that a



            new trial is warranted.  For this proposition, Gilbert relies



            exclusively on dictum from State v. Gilbert, 473 A.2d 1273
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            (Me. 1984), which, while affirming a trial court's refusal to



            include an irrelevant affirmative defense instruction in a



            criminal case, states the unremarkable proposition that "[a]n



            instruction on an issue not generated by the evidence would



            serve only to confuse or mislead the jury."  Id. at 1277. 
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            Gilbert's reliance is misplaced.



                      We reject Gilbert's argument for two reasons.



            First, the court's inclusion of the assumption of the risk



            language was not extraneous or irrelevant.  To the contrary,



            the language was a necessary part of the cogent summary of



            the controlling law that the district court appropriately



            provided the jury.  See Hardin v. Ski Venture, Inc., 50 F.3d
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            1291, 1295 (4th Cir. 1995)(noting it would be "truly bizarre"



            if the district court were not allowed to cite assumption of



            the risk language in the controlling skier statute in its



            instructions).  "The instructions, rather than being



            overinclusive, were thorough."  State v. Baker, 505 A.2d 96,
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            98 (Me. 1986).  Second, assuming for the sake of argument



            that the court's summary of section 488 constitutes an



            erroneous instruction on an issue not generated by the



            evidence, we are at a loss to see how Gilbert suffered legal



            prejudice as a result.  "An error in jury instructions will







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            warrant reversal of a judgment only if the error is



            determined to have been prejudicial, based on a review of the



            record as a whole."  Davet v. Maccarone, 973 F.2d 22, 26 (1st
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            Cir. 1992).  The charge was a model of clarity in directing



            the jury to decide whether Sunday River was negligent in its



            operation of the ski area.  These instructions gave the jury



            ample guidance and leeway to find Sunday River negligent.



            How an accurate description of the applicable law could have



            deflected a reasonable jury from deciding whether Sunday



            River was negligent truly escapes us.



                      Affirmed.   Costs to the Appellee.
Affirmed.   Costs to the Appellee.
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