The plaintiffs, husband and wife, brought actions for personal injury and loss of consortium resulting from an accident on the defendant's chairlift. They appeal the judgment entered on a verdict for the defendant. We reverse and remand.
The plaintiffs boarded the chairlift at defendant's ski area on January 15, 1977. After their chair had gone a short distance up the mountain, the lift stopped and the chairs rolled back. As they did, the bottom of the husband's skis allegedly caught in the snow, causing hyperextension and rotation of his knees, which resulted in permanent injury.
In the actions now before us the plaintiffs pleaded counts in common law negligent operation and violation of statutory standards of operation, maintenance and control imposed by RSA chapter 225-A.
Although this ruling is dispositive of the case, we will address the defendant's other issues, which are likely to arise again in this or other cases. See Ives v. Manchester Subaru, 126 N.H. 796, 498 A.2d 297 (1985). We therefore proceed and find further reversible error in the failure of the trial court to give adequate instruction to the jury on the standards imposed by RSA chapter 225-A, regulating passenger tramways, including ski lifts. The trial judge merely charged the jury that no action would lie against the operator of a tramway except for a causal "violation of [the] chapter or the rules of the [tramway safety] board" or for common law negligence in the maintenance of the tramway. See RSA 225-A:26, I (now RSA 225-A:25, I (Supp. 1983)). (Because this case arose in 1977 before the 1978 amendment, we will apply the 1977 version of RSA 225-A:26, which was then in effect.) The judge then left it to the jury to examine a 50-page pamphlet quoting the statute and rules, to determine which of them might be relevant in the light of the evidence.
By refusing to say more, the judge failed to fulfill the court's "duty... to instruct the jury [fully and correctly] as to the law applicable to the case and ... to phrase his instructions [so] that it is reasonably certain that the jury under[stands] them." Wadsworth v. Russell, 108 N.H. 1, 6, 226 A.2d 492, 496 (1967). It was the judge's duty to identify and explain any relevant portions of the statute and rules, and the failure to do so calls for a new trial.
We believe that the remaining two assignments of error lack merit, however. The plaintiffs excepted to the judge's refusal to give the following instruction on res ipsa loquitur.
Looking to the first element,
W. PROSSER & W. KEETON, THE LAW OF TORTS 247 (5th ed. 1984). Accord RESTATEMENT (SECOND) OF TORTS § 328D comment d (1965); Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134, 1138 (1981); Buckelew v. Grossbard, 87 N.J. 512, 527-28, 435 A.2d 1150, 1158 (1981). The plaintiff correctly concluded that this was a case requiring expert testimony to establish that the accident was of a sort that ordinarily would not have occurred without negligence. An expert testified about various negligent acts and omissions that could have caused the accident. This testimony was, however, at the least unclear in eliminating non-negligent causes, for the expert stated that one of the braking mechanisms could have failed "for some other reason." So far as the record indicates anything, that "other reason" need not have been someone's negligence, and we
It appears to us that the same point is true with respect to the third element, the sufficient elimination of other responsible causes for the accident. Once again, the mechanics of ski lifts are outside common experience, and jurors would need the benefit of expert testimony before they could reasonably eliminate all probable causal negligence but that of the defendant-operator. On this issue, the expert described several causal malfunctions that apparently could have resulted either from defective design or from defective maintenance. Since this testimony did not tend to eliminate the negligence of the designer or manufacturer from the range of reasonably possible causes of malfunction, it was insufficient to carry the plaintiff's burden. The trial court was, therefore, justified in refusing to instruct on res ipsa.
RESTATEMENT (SECOND) OF TORTS § 328D comment f; W. PROSSER & W. KEETON, supra at 248-51. In any case, the lack of sufficient expert testimony to satisfy either the first or the third condition justified the trial court's refusal to instruct on res ipsa at the trial.
He based his ruling on the provision of RSA 225-A:26, I (now RSA 225-A:25, I (Supp. 1983)), to which we have already referred. At the time of the accident the statute read as follows:
The judge read the provision expressly allowing common law actions for negligent construction and maintenance as implicitly excluding common law liability for negligent operation. He thus applied the rule of construction that the expression of a series implies the exclusion of a relevant item omitted from the series. In re Gamble, 118 N.H. 771, 777, 394 A.2d 308, 311 (1978); 2A SUTHERLAND STAT. CONST. § 47.23-.24 (4th ed. C. Sands rev. 1984).
The plaintiffs argue that this rule should not be applied in derogation of the common law unless the exclusory intention is clear. See Bolduc v. Herbert Schneider Corp., 117 N.H. 566, 568, 374 A.2d 1187, 1188-89 (1977). And they cite Ford v. Black Mountain Tramways, 110 N.H. 20, 259 A.2d 129 (1969) as specific authority for construing this statute as preserving the common law action for negligent operation.
We do not read Ford as the plaintiffs do, however. While the court in Ford noted that the plaintiff's action alleged negligent operation and maintenance of a ski lift, the court held only that under then RSA 225-A:26 the plaintiff could maintain an action for common law negligence in maintenance and construction.
Nor do we believe that Bolduc is helpful to the plaintiffs here. Even though Bolduc is good authority for the rule that an exclusory intention must be clear before courts will infer a limitation of common law rights of action, we believe that such an intention is apparent in this statute. Before its most recent amendment, the statute expressly preserved common law liability for tramway operators' negligence in construction and maintenance of the tramway. These two categories of tramway construction and maintenance are naturally and commonly associated with a third, tramway operation. RSA 225-A:19, for example, lists "construction, operation and maintenance" as possible sources of danger to the public, and RSA 225-A:8 gives responsibility to the tramway safety board for the adoption of rules to ensure safety in "construction, operation and maintenance" of tramways. Therefore, the omission in former RSA 225-A:26, I, of any reference to the third related category, operation, does appear to have been clearly intended. Such an intent was consistent with the heavy responsibility given to the tramway safety board to promote safe operation not only by issuing rules, RSA 225-A:8, but by taking action to stop the operation of tramways presenting unreasonable hazards. RSA 225-A:18-a, :19-a.
Reversed and remanded.
JOHNSON, J., did not sit; the others concurred.