Nelson was injured while snow tubing on defendantís recreational facility.
The accident occurred when plaintiff was exiting the snow slide and
another tuber was permitted by defendantís employee to start the slide too
early and crashed into plaintiff. The
trial court instructed the jury that defendant is not liable for inherent risks
from snow tubing and the jury found for the defendant.
In this opinion, the Virginia Supreme Court rejects the proposition that
a participant in a recreational activity is deemed to consent to the inherent
risks (which were not defined by the trial court) of the activity.
Instead, for assumption of the risk, there must be proof that the
plaintiff actually thought about the risks involved, decided to undergo them,
and was injured when one of those risks materialized.
this appeal, the dispositive issue is whether the trial court erred in
instructing the jury in a personal injury case that the owner/operator of a
recreational facility owed no duty to protect a voluntary participant against
the "inherent risks" of the recreational activity in which the
participant was injured.
parties do not dispute the relevant facts, which will be recited here in the
light most favorable to the party prevailing in the trial court.
Gardner v. Phipps, 250 Va. 256, 257, 462 S.E.2d 91, 92 (1995).
On January 26, 2000, Lisa S. Nelson was a business invitee of Great
Eastern Resort Management, Inc., which operates in Virginia under the trade name
of Massanutten Ski Lodge (Massanutten). As
part of the winter sports and recreational activities provided at the resort,
Massanutten operates a snow tubing park. Nelson
voluntarily participated in snow tubing on that day.
slide portion of the snow tubing park consists of nine inclined prefabricated
slide lanes separated by raised dividers. When
the slide is covered with snow, riders in inflated inner tubes may traverse the
slide lanes after reaching the top of the slide by a tow lift.
When riders reach the bottom of the slide, they are slowed to a stop in a
level area called the "run‑ off."
The height of the lane dividers increases with the amount of snow on the
slide and berms of snow can form in the run‑off area, thereby extending
the lane dividers into that area.
Massanutten employs "loaders," who assist riders in
using the tow lift, a "starter,"
who directs riders to their assigned lanes and gives them a verbal clearance to
begin their ride, and a "run‑off person," who directs riders to
clear the run‑off area when their rides are complete. Because the slide has several rises and dips, the starter
cannot always see the entire run of the slide or discern whether there are
riders still on the slide or in the run‑off area, especially when the snow
is deep. Accordingly, the starter
and the run‑off person are in contact by two‑way radio, and it is
the responsibility of the run‑off person to advise the starter when the
slide and run‑off area are clear of riders.
Similarly, the starter is to advise the run‑ off person if any
rider begins his ride early or late.
Massanutten posts warning signs at the entrance to the snow
tubing park advising customers that "tubing is inherently risky ... those
risks arise from the following, among others:
... collisions with objects, tubes, or people." The warning signs
also direct riders to "be sure the lane is clear before starting your
descent," and to "clear the lane as soon as your ride is
complete." Similar warnings
appear on the ticket admitting customers to the snow tubing park.
completing a number of snow tubing rides without incident, Nelson was completing
a ride at approximately 12:45 p.m. when another rider emerging from the slide
into the run‑off area struck her. Nelson
suffered serious injuries requiring medical and surgical care.
September 13, 2000, Nelson filed a motion for judgment against Massanutten
seeking $650,000 in compensatory damages. Nelson alleged that her injuries were
the result of negligence on the part of Massanutten and its employees.
Although the motion for judgment alleged numerous acts of negligence, the
thrust of Nelson's assertions therein was that Massanutten and its employees
negligently permitted another rider to commence the ride in her lane before she
had exited it and negligently failed to warn her of the impending collision.
grounds of defense filed October 5, 2000, Massanutten denied that it had been
negligent in the operation of the snow tubing park, in training its employees,
or in failing to provide the warnings alluded to in Nelson's motion for
judgment. Massanutten further
asserted that Nelson had been contributorily negligent, that she had
"assumed all the risks incident to her alleged injury," and that
"[t]he risks which [Nelson] alleges were the cause of her injury were
inherent to the sport of snow tubing."
a jury trial held on July 9, 2001, evidence in accord with the above‑
recited facts was received along with evidence relevant to Nelson's alleged
damages. In addition to
instructions relevant to negligence, contributory negligence, and assumption of
risk, the trial court gave the following instruction proffered by Massanutten:
operator of a recreational facility has no duty to protect a voluntary
participant in a recreational activity against risks that are inherent in the
activity itself. Its only duty is
to use ordinary care not to increase the risk beyond what is inherent in the
activity. A participant in such an
activity is deemed to have accepted all risks that would have been clear and
obvious to a reasonably careful person under the same or similar circumstances.
the time the instruction was proffered, Nelson objected that "this is not a
statement of Virginia law." Massanutten,
relying primarily on Whitfield v. Cox,
189 Va. 219, 52 S.E.2d 72 (1949), contended that the instruction was consistent
with the doctrine of inherent risks which had been recognized in Virginia.
The trial court noted Nelson's objection stating, "I think the
evidence can support it and I think it's good law."
The jury returned its verdict for Massanutten.
Thereafter, Nelson filed a motion requesting the trial court
to set aside the jury's verdict and order a new trial. After hearing oral argument on Nelson's motion, the trial
court entered an order denying the motion and awarding final judgment to
Massanutten in accord with the jury's verdict.
This appeal followed.
is axiomatic that participation in certain sports or recreational activities
necessarily involves the exposure of the participant to the risks of injury
inherent in such activities. Snow
skiing and snow tubing are but a few examples of such activities.
Indeed, it can be reasonably asserted from common experience that the
known and accepted inherent risks of a particular recreational activity provide,
in part, the allure and thrill of participation in the activity.
It is in this context that the duty of care owed by the operator of a
recreational facility to its invitee and participant in a particular activity is
tempered by the common law principle
volenti non fit injuria‑‑one who consents cannot be injured.
notion of consent is embodied in the doctrine of assumption of risk that
operates to bar recovery by an injured party where the nature and extent of the
risk were fully appreciated and the risk was voluntarily incurred by that party.
Landes v. Arehart, 212 Va. 200, 203, 183 S.E.2d 127, 129 (1971).
Assumption of risk is an affirmative defense in Virginia.
It requires the defendant under a primarily subjective test, rather than
the objective reasonable person test applicable to contributory negligence, to
show "what the particular plaintiff in fact sees, knows, understands and
Amusement Slides Corp. v. Lehmann, 217 Va. 815, 818‑19, 232
S.E.2d 803, 805 (1977) (citation omitted).
However, while the degree or scope of the injured participant's consent
is frequently an issue, the operator of a recreational facility is not an
insurer of the safety of its invitees.
Whitfield, 189 Va. at 223, 52 S.E.2d at 73.
Massanutten acknowledges on appeal that the doctrine of
inherent risks, sometimes referred to as "primary" or
"implied" assumption of risk, has not been adopted by this Court as
part of the common law of Virginia.
See Hoar v. Great Eastern Resort Management, 256 Va. 374, 389, 506
S.E.2d 777, 786 (1998). Nonetheless,
Massanutten contends that this doctrine is in accord with sound public policy to
facilitate free and active participation in sporting and recreational activities
and urges its adoption by this Court at this time.
a statement or explanation of the doctrine of inherent risks, Massanutten cites
Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (N.Y.1986),
a case in which a participant in a professional horse race was injured by the
alleged negligence of another participant and the operator of the racing track. In Turcotte, after
noting that "the analysis of care owed [the] plaintiff in the professional
sporting event ... by the proprietor of the facility in which it takes place
must be evaluated by considering the risks plaintiff assumed," the Court
risk assumed ... means that the plaintiff, in advance, has given his consent to
relieve the defendant of an obligation of conduct toward him, and to take his
chances of injury from a known risk arising from what the defendant is to do or
leave undone. The situation is then
the same as where the plaintiff consents to the infliction of what would
otherwise be an intentional tort, except that the consent is to run the risk of
unintended injury. The result is
that the defendant is relieved of legal duty to the plaintiff; and being under
no duty, he cannot be charged with negligence.
at 49, 502 N.E.2d at 967‑68 (internal quotation marks and ellipses
Court of Appeals of New York further explained that in the context of sporting
events the "[d]efendant's duty ... is a duty to exercise care to make the
conditions as safe as they appear to be. If
the risks of the activity are fully comprehended or perfectly obvious, plaintiff
has consented to them and the defendant has performed its duty." Id. at 49, 502 N.E.2d at 968.
purposes of our resolution of the present case, we need not conduct a survey of
the law of all our sister states on the issue presented.
We will accept Massanutten's assertion that the doctrine of inherent
risks, as briefly described above, is accepted in a number of those states.
We note, however, that unlike the situation in this Commonwealth, the
enactment of a comparative negligence statute in New York has prompted the
courts there to conclude that, while assumption of risk is no longer an absolute
defense, "it still helps and serves to define the standard of care under
which a defendant's duty is defined and circumscribed." Morgan v. State, 90
N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202, 208 (N.Y.1997).
Similarly, we need not analyze the instruction at issue here to determine
whether it comports in all respects with an accurate definition and proper
application of the doctrine of inherent risks.
The parties do not raise that issue.
Beyond question, the jury in this case was presented with
evidence sufficient to establish a prima
facie case that Nelson as a business invitee was owed a duty of reasonable
care under the circumstances by Massanutten, that Massanutten negligently
breached that duty by permitting another rider to commence the ride before she
exited it, negligently failed to warn her of the impending collision, and that
her injuries were proximately caused by that negligent conduct. See, e.g., Amos v.
NationsBank, N.A., 256 Va. 344, 346, 504 S.E.2d 365, 366 (1998);
Fobbs v. Webb Building Limited Partnership, 232 Va. 227, 229, 349
S.E.2d 355, 357 (1986);
Wynne v. Spainhour, 215 Va. 16, 17, 205 S.E.2d 634, 635 (1974).
The jury was properly instructed on the defenses of contributory
negligence and assumption of risk, which were available to and asserted by
Massanutten. In short, the case was
not an unusual one and presented jury issues readily determined under the
traditional principles of law that have long been established in the common law
of this Commonwealth.
issue of assumption of risk was patent from the factual circumstances
established by the evidence. Clearly,
Nelson "assumed the risk of injury resulting from a ride down a steep
incline." Amusement Slides, 217 Va. at 819, 232 S.E.2d at 805.
Nelson, however, was not injured as a result of the speed of her ride;
she was injured by a collision with another rider.
Thus, the issue for the jury to determine was whether Nelson subjectively
assumed the risk of injury in that manner.
Massanutten's instruction, however, permitted the jury to resolve the
issue under directions that Nelson was "deemed to have accepted all risks
that would have been clear and obvious to a reasonably careful person under the
same or similar circumstances." This
objective standard, apparently applicable under the doctrine of inherent risks
as adopted in other states, is inconsistent with the traditional standard
applicable in Virginia where a primarily subjective test is applied to determine
the applicability of the absolute defense of assumption of risk.
See Thurmond v. Prince William Professional Baseball Club, Inc., 265
Va. ‑‑‑‑, ‑‑‑‑, 574 S.E.2d 246,
‑‑‑‑ (2003) (this day decided) (subjective standard used
in application of the defense of assumption of risk where plaintiff injured by a
batted "foul" ball). We
continue to be of opinion that fairness militates in favor of the traditional
standard because it clearly places the burden of proof upon the party asserting
consent and because of the absolute defense that consent affords.
addition, and more importantly, Massanutten's instruction told the jury that
Massanutten's only duty of care with regard to Nelson's use of the slide was
"to use ordinary care not to increase the risk beyond what [was] inherent
in the activity" without a further instruction of what risks were to be
considered inherent. [FN2] Thus,
the jury could have determined that it was required to find in favor of
Massanutten under this instruction even though it also found that Massanutten
negligently permitted another rider to use Nelson's lane on the slide before she
exited from it and that Nelson had not assumed that risk. In this context, Massanutten's instruction was at best
The trial court refused an instruction proffered by Nelson that would have told
the jury that "[i]f a hazard can be eliminated or mitigated by reasonable
care, it is not an inherent risk of snow tubing."
we are not persuaded that the adoption by this Court of the doctrine of inherent
risks would promote the public policy of free and active participation in
sporting and recreational activities. Rather,
we are of opinion that the well established common law in this Commonwealth
adequately resolves claims that arise from injuries sustained in these
activities and that our adherence to that law will avoid unnecessary confusion
and is consistent with the public policy Massanutten favors.
Accordingly, we reject Massanutten's request that we adopt the doctrine
of inherent risks as a part of the common law of this Commonwealth. [FN3]
Our decision not to adopt the doctrine of inherent risk is in accord with the
action of the General Laws Committee of the House of Delegates, which considered
proposed legislation, the "Skiing Responsibility Act," that, in part,
would have applied the doctrine of inherent risks to participants in winter
See House Bill No. 803 (1988)(continued on the docket to 1989 and
then stricken in committee).
hold that the trial court erred in granting Massanutten's instruction on the
doctrine of inherent risks. "If
an issue is erroneously submitted to a jury, we presume that the jury decided
the case upon that issue."
Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).
Accordingly, we cannot say that the trial court's error in instructing the jury
on the doctrine of inherent risks was harmless, and we will reverse the judgment
in favor of Massanutten.
these reasons, the judgment of the trial court will be reversed and the case
remanded for a new trial.
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