Sunday v. Stratton Corp. - 136 Vt. 293, 390 A.2d 398 (1978)

Rule:

The elements of "secondary" assumption of risk are there must be knowledge of the existence of the risk, appreciation of the extent of the danger, and consent to assume it.

Facts:

On February 10, 1974, James C. Sunday, then just under 21, was injured while skiing as a paying patron on the premises of the Stratton Corporation’s ski resort in Stratton, Vermont. His injuries resulted in permanent quadriplegia. In the instant suit, he alleges in substance that Stratton negligently maintained its ski trails and failed to give notice of hidden dangers. Trial by jury, demanded by both parties, resulted in a plaintiff's verdict for $ 1,500,000 and judgment for that amount plus costs. The verdict was based upon a finding that Stratton’s negligence was 100% the cause of Sunday’s injuries. Defendant, by its appeal, seeks in the alternative: (I) reversal of the trial court's adverse ruling on its motion for directed verdict based upon assumption of risk, and entry of judgment in its favor here, (II) reversal and remand because of claimed trial errors, including denial of a motion for mistrial and errors in the court's charge, (III) setting aside the verdict as against the weight of the evidence, and (IV) remand for new trial because of error in denying its motion to set aside the verdict as excessive.

Issue:

Was Stratton’s claim that it was not liable under the doctrine of assumption of risk meritorious?

Answer:

No

Conclusion:

The court affirmed the judgment, finding that Sunday had not assumed the risk because on the most maintained slope for novices the brush should have been eliminated. The court found that the charge to the jury was clear and required the jury to find that the ski resort had a duty and a breach of that duty. There was no adequate objection to the charge in regard to secondary assumption of the risk because there was no distinction made between primary and secondary assumption of risk. It was not error to deny the ski resort's motion for a mistrial when the trial court, out of the jury's presence, heard the motion for a directed verdict that resulted in an article in a newspaper, which two juror read the headline. It was not an abuse of discretion to not hear the motion for a directed verdict in the judge's chambers. The court found that it was not error to deny the motion for a mistrial because the admonitions to the jury negated any possible resultant prejudice.