BARRETT, Senior Circuit Judge.
Becky J. Kidd (Kidd) appeals from a memorandum opinion and order granting Taos Ski Valley, Inc. (TSV) summary judgment and dismissing her complaint with prejudice.
Kidd suffered a broken back, ribs, hip, and pelvis in a skiing accident at TSV. "Her injuries were possibly received when she crossed a diversionary rope located on an area permanently marked as a slow skiing area by a huge orange banner." (Appellant's Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445). "The black and yellow rope, held up by bamboo poles and marked with strips of orange fluorescent flagging, was intended to close off a portion of the mountain to prevent collisions between skiers returning to the base from different sides of the mountain." Id. "Plaintiff, an experienced TSV skier, never saw the rope closure." Id. at 445-46.
Kidd filed a complaint in which she alleged, inter alia, that: TSV, in installing the diversionary rope, had breached its obligations under New Mexico's Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq. (the Act), by failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles (Count I); TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages (Count II); TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary (Count III); and TSV's installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV (Count IV).
TSV moved to dismiss Counts II, III, and IV for failure to state a claim upon which
In dismissing Count III, the district court concluded that the "language of the statute indicates that the legislature intended the Act as the sole remedy for skiers" and that New Mexico case law "provide[s] persuasive authority indicating that the state courts would reject Plaintiff's theory of liability based on a third party beneficiary cause of action." (Appellant's Appendix, Vol. I at 73-74). In dismissing Count IV, the district court concluded that the inherently dangerous activity doctrine "is inconsistent with the Act because it would permit the imposition of additional duties on ski operators" and that the "Act was intended to limit the duties which can be imposed upon ski area operators [and] therefore forecloses the application of the" doctrine. Id. at 75-76. Kidd's subsequent motion for reconsideration of the dismissal of Count III was denied.
Thereafter, TSV moved for summary judgment on Kidd's remaining claims and Kidd moved for partial summary judgment on the issue of TSV's negligence. Following briefing, the district court entered a memorandum opinion and order granting TSV summary judgment and dismissing Kidd's complaint with prejudice. In so doing, the district court found that: although TSV offered convincing evidence that Kidd breached her duty to ski safely, Kidd's testimony that she was not skiing out of control created a genuine issue of material fact making summary judgment improper, (Appellant's Appendix, Vol. II at 447); Kidd failed to produce competent evidence from which a reasonable juror could conclude that the rope closure was not in accordance with industry usage and National Ski Area Association (NSAA) standards, id. at 449; and, no reasonable juror could conclude that the closure itself created a hazard under the Act requiring TSV to warn skiers of its presence. Id. at 451.
On appeal, Kidd contends that the district court erred when it granted TSV's motion for summary judgment, barred her from obtaining critical discovery, and dismissed her third party beneficiary claim.
Kidd contends that the district court erred when it granted summary judgment in favor of TSV. Kidd argues that summary judgment was erroneous because she presented substantial evidence that TSV breached its duties under §§ 24-15-7(I) and (C) of the Act.
We review a district court's grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Lancaster v. Air Line Pilots Ass'n Int'l., 76 F.3d 1509, 1516 (10th Cir. 1996). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Hagelin for President Comm. of Kan. v. Graves, 25 F.3d 956, 959 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 934, 130 L.Ed.2d 880 (1995). When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the non-moving/opposing party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995).
Kidd asserts that summary judgment was inappropriate because there was substantial evidence that TSV breached its duty under § 24-15-7(I) of the Act. This section provides that "[e]very ski area operator shall have the following duties with respect to the operation of a skiing area: ... to warn of or correct particular hazards or dangers known to the operator where feasible to do so."
Kidd argues that TSV breached this duty when it installed the single strand diversionary rope and blocked off an otherwise skiable
(Appellant's Appendix, Vol. II at 447).
Kidd maintains that this conclusion was erroneous and that summary judgment improper when, as here: TSV's expert acknowledged that a rope between two poles on a ski slope could be a hazard if a skier did not have time to react to the rope or could not see it. (Appellant's Appendix, Vol. II at 333); the evidence was undisputed that Kidd, an experienced TSV skier did not see the rope, id. at 445-46; Kidd presented the testimony of another skier who stated that the "rope was not reasonably visible" and that "[i]n skiing down the slope to Becky J. Kidd I did not see the rope," id. at 309; and photographs taken immediately after the accident demonstrated the rope's lack of visibility against the white background.
TSV responds that summary judgment was proper based on the undisputed evidence that the area of Kidd's accident had been marked off and closed to skiing for at least twelve years without incident and its expert's testimony that the rope did not create a hazardous situation and that the rope complied with the Act. TSV also maintains that a ski area operator's duty to warn of or correct particular hazards or dangers under § 24-15-7(I) is limited to those hazards or dangers which are known to the operator and that Kidd failed to present any evidence that TSV knew that the rope closure was a hazard.
Although the determination of "[w]hether a duty [under the Act] has been breached is a question of fact," Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648, 655 (Ct.App.), cert. denied, 113 N.M. 815, 833 P.2d 1181 (1992), the determination of "[w]hether a duty exists is generally a question of law for the court to determine." Id. As a matter of law, the duty imposed on ski area operators by § 24-15-7(I) "is limited to situations where the particular hazard is both known to the ski area operator and warning of or correcting the particular hazard is feasible." Id. 836 P.2d at 656 (emphasis original).
Applying Lopez, we hold that the district court did not err in granting TSV summary judgment on Kidd's § 24-15-7(I) claim. Kidd failed to present any probative evidence that the diversionary rope in question was a "particular hazard ... known to" TSV. On the contrary, the undisputed evidence was that the rope had been in place since 1978 and over one million skiers had managed to ski past it without injury. Therefore, TSV was entitled to judgment on this claim as a matter of law.
Kidd reasons that she presented substantial evidence that TSV breached its duty under § 24-15-7(C) of the act making summary judgment on this claim improper.
Section 24-15-7(C) provides:
Kidd asserts that she presented evidence which created a triable issue on whether TSV breached its duty under § 24-15-7(C) to comply with NSAA standards when it installed a single strand diversionary rope rather than multiple ropes or other barriers. Kidd
TSV responds that: the only issue is whether the rope closure at issue complied with NSAA standards; Kidd is attempting to divert the inquiry away from whether TSV complied with NSAA standards by focusing on what TSV could have done rather than on what it did; and its expert testimony established, without exception, that the rope closure complied with NSAA standards.
We agree with the district court's findings that Kidd produced "[o]nly speculation, not expert testimony ... in attempting to rebut Defendant's submitted compliance with the Act" and that "the record [is] absent of competent evidence that the closure fell outside industry norms established by NSAA standards." (Appellant's Appendix, Vol. II at 450). Kidd failed to meet her burden as a nonmoving party of producing specific facts "by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves" to avoid TSV's properly supported summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Her conclusory allegations are not sufficient to defeat TSV's motion. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995).
Kidd contends that the district court erred when it barred her from obtaining critical discovery relevant to issues raised in the summary judgment proceedings. Kidd maintains that the district court abused its discretion when it prevented her from deposing TSV employees and from designating a visual acuity expert.
Kidd states that the district court abused its discretion when it prevented her from deposing TSV employees concerning the hazardous nature of the rope. Under Fed. R. Civ. P. 26(c), the district court may limit or bar discovery. The decision of a district court to enter a protective order under Rule 26(c) is reviewed for an abuse of discretion. Boughton v. Cotter Corp., 65 F.3d 823, 828 (10th Cir.1995). Under this standard, "we will not disturb a trial court's decision absent `a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'" Thomas v. International Business Machs., 48 F.3d 478, 482 (10th Cir.1995) (citations omitted).
Senior TSV employees testified that patrol members had been trained concerning the use of markings and compliance with both TSV and the Act's standards. They also testified that patrol members were instructed to insure that markings were visible. When Kidd attempted to depose ski patrol members on their training and whether the rope in question was appropriately marked, TSV filed a motion for a protective order.
Following a hearing, the magistrate judge entered a discovery order granting TSV's motion "to the extent Defendant seeks to bar the deposition of the Chief Groomer and the Assistant Head of the Ski Patrol at this time, based upon the court's finding that subordinate employees should not be deposed to the extent the same information may be obtained from supervisors." (Appellant's Appendix, Vol. I at 109).
Kidd objected to the magistrate's order. Thereafter, the district court entered a memorandum opinion overruling Kidd's objections, finding, inter alia:
(Appellant's Appendix at 442B-42C).
We agree. Michael Blake, TSV's General Manager, testified that he had the "ultimate responsibility" for properly marking TSV. (Appellant's Appendix, Vol. II at 285). Under these circumstances, we hold that the district court did not abuse its discretion in overruling Kidd's objections to the magistrate judge's order.
Kidd declares that the district court abused its discretion when it prevented her from designating a visual acuity expert. The decision to allow the testimony of an expert not described or listed in the pretrial order rests with the sound discretion of the district court and will not be disturbed absent an abuse of discretion. F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1556 (10th Cir.1994).
In the initial pre-trial report, Kidd agreed to identify her liability expert witnesses by September 15, 1993. Kidd did not identify any liability expert witnesses by that date. However, Kidd retained additional counsel on January 15, 1994. On January 21, 1994, Kidd's additional counsel filed a motion to add Freeman Hall, a visual acuity specialist and engineer, as an expert witness. The magistrate judge denied Kidd's motion.
Following a review of Kidd's objections to the magistrate judge's order, the district court entered a memorandum opinion overruling Kidd's objections, stating:
(Appellant's Appendix at 442B).
Kidd asserts that the district court abused its discretion when it prevented her from designating a visual acuity expert who would have testified that the rope in question was not visible when, as here: the trial date had not been set; TSV would not have been prejudiced; she had been diligent, with the exception of designating the expert, in conducting her discovery; she did not appreciate the need for a visual acuity expert until she retained additional counsel; and a visual acuity expert was a critical expert who would explain to the jury what factors affected the rope's visibility and why it could not be seen by skiers.
We hold that the district court did not abuse its discretion in refusing to allow Kidd to designate a visual acuity expert. Kidd's request to designate an expert was made more than four months after the time period for designating such experts had lapsed. Moreover, Kidd provided no reason for her delay, save to allege that she was not aware of the need for such an expert until after she had retained additional counsel and that the expert would explain why the rope could not be seen by skiers. Neither of these assertions are sufficient to support Kidd's claim that the district court abused its discretion, particularly in that it was undisputed that Kidd, "an experienced TSV skier, never saw the rope closure." (Appellant's Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445).
Kidd contends that the district court erred when it dismissed her third party beneficiary claim. We review de novo the district court's dismissal for failure to state a claim. Seymour v. Thornton, 79 F.3d 980, 984 (10th Cir.1996).
In Count III, Kidd alleged, inter alia:
(Appellant's Appendix at 5). (Emphasis added).
In dismissing Count III, the district court concluded:
(Appellant's Appendix, Vol. I at 73-74).
We agree with the district court that New Mexico case law provides "persuasive authority
(Appellant's Appendix, Vol. I at 37).