Mejia-Haffner et al v. Killington/Pico Ski Resort Partners, LLC
Filing
71
DECISION on Burden of Proof for Vermont Sports Injury Statute. The court will place the burden of proof with respect to 12 V.S.A §1037 on the defendant. Signed by Judge Geoffrey W. Crawford on 11/1/2016. (esb)
U.S. DISTRiCT COURT
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
CLAUDIA MEJIA-HAFFNER and
STEVEN R. HAFFNER,
Plaintiffs,
v.
KILLINGTON/PICO SKI RESORT
PARTNERS, LLC,
Defendant.
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Case No. 5:15-CV-175
DECISION ON BURDEN OF PROOF for VERMONT SPORTS INJURY STATUTE
Defendant objects to the proposed jury instructions (doc. 63) because these place the
burden of proof on the application ofthe Vermont Sports Injury statute, 12 V.S.A. § 1037, on the
defense. The court will instruct the jury that the burden of proof is on the Defendant. Only two
cases address the issue and these not very directly.
In Mahdessian v. Stratton Corp, 210 F.3d 355 (2d Cir. 2000), the district court placed the
burden of proof on the plaintiff- skier. There was no objection. The Second Circuit held that it
was not plain error to place the burden of proof on the plaintiff. That was hardly a ringing
endorsement. Earlier in Dillworth v. Gambardella, 970 F .2d 1113 (2d Cir. 1992), the court
suggested the opposite result. In Dillworth the court held that a collision between two skiers was
covered by the sports injury statute. The court equated primary assumption of the risk and the
sports injury statute and observed that both are best understood as rules that no duty is owed by
the defendant in cases of inherent, obvious and necessary risk. In addressing burden of proof,
the court noted that
We realize that rephrasing the issue from assumption of inherent dangers to the duties
owed by defendant changes the burdens of pleading and proof. Plaintiffhas the burden to
show breach of duty by the defendant. Defendant must plead and prove assumption of
risk as an affirmative defense.
Id. at n.1. The court has sought to follow this distinction in the instructions. There is no
question that plaintiff has the burden of proving breach. The existence of a duty is generally a
legal issue not presented to the jury and it is not given to the jury in this case. The court has
ruled as a matter of law that the defendant owes a duty of reasonable care (negligence) to the
plaintiff. The only exception to that general rule is the specific exception to the negligence
standard arising from inherent, obvious and necessary dangers for which there is no duty. The
court's allocation of burden requires the defendant to come forward with evidence that this
exception applies.
There are certainly arguments to be made in favor of requiring the plaintiff to prove that
the exception does not apply to the general rule that we all owe one another a negligence duty in
the conduct of our lives. See Sklar v. Okemo Mountain, 877 F. Supp. 85 (D. Ct. 1995). But the
court is dealing with a statute, not a common law rule, so the issue is one of legislative intent. It
is well accepted that in enacting the sports injury statute, the legislature sought to codify the rule
expressed in Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp 786 (D.Vt. 1951) and Sunday v.
Stratton Corp, 136 Vt. 293 (1978) that ski area liability is governed by primary assumption of
the risk. Certainly Judge Gibson in 1951 would have been surprised by an argument that
plaintiffs have the burden of disproving their assumption of the risk. In Sunday, the Vermont
Supreme Court made this understanding explicit: "[w]ith the burden of proof on assumption of
risk and contributory negligence resting on the defendant under V.R.C.P. 8(c), defendant may
well have received more charge than it was entitled to." Id. at 404.
In seeking to codify the
common law rule, it is most probable that the legislature intended to codify the entire legal
structure, including the long-standing practice of considering assumption of the risk to be an
affirmative defense and assigning the burden of proof to the defense.
Placing the burden of proof on the defense is also consistent with a long line of Vermont
Supreme Court cases drawn from other areas of negligence law which place the burden of proof
in assumption of the risk cases on the defendant after it raises the issue as an affirmative defense.
See, for example, Garafano v. Neshobe Beach Club, Inc., 126 Vt. 566 (1967); Wells v. Village of
Orleans, 132 Vt. 216 (1974); Paton v. Sawyer, 134 Vt. 598 (1976); Sunday v. Stratton Corp, 136
Vt. 293 (1978). These are all cases involving secondary assumption of the risk which is now
understood as the equivalent of a claim of comparative negligence. Nevertheless, the practice of
placing the burden of proof on the defendant is oflong-standing and consistent with V.R.Civ.P.
8(c) which includes assumption of risk on the list of affirmative defenses which must be raised in
the answer.
CONCLUSION
The court will place the burden of proof with respect to 12 V.S.A. § 1037 on the
defendant.
Dated at Rutland, in the District ofVermont, this 1st day ofNovember, 2016.
Geoffrey W. Crawford, U.S. District Judge
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