No. 12577 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

FRED PESSL, 

Plaintiff and Respondent, 

BRIDGER BOWL, a Montana corporation, 

and RIBLET TRAMWAY COMPANY, a corporation, 

Defendants and Appellants. 

Appeal from: District Court of the Eighteenth Judicial District, 

R on or able W. W. Lessley, Judge presiding. 

Counsel of Record : 

For Appellants : 

Poore, McKenzie and Roth, Butte, Montana 

Allen R. McKenzie argued, Butte, Montana 

Berg, OIConnell, Angel and Andriolo, Bozeman, Montana 

For Respondent : 

Bolinger and Wellcome, Bozeman, Montana 

Page Wellcome argued, Bozeman, Montana 

- -- 

Submitted: May 20, 1974 

Decided : JUL - 9 1974 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment against defendant and 

from an order denying motions for a new trial and judgment notwithstanding the verdict. The case was tried in Gallatin County 

before a jury. 

Plaintiff Fred Pessl brought action against Bridger Bowl, 

a Montana corporation, and Riblet Tramway Company alleging their 

negligence caused an accident and injury sustained by plaintiff on 

February 22, 1972. Plaintiff also asserted a claim based on the 

doctrine of strict liability and breach of implied warranty as 

to Riblet Tramway Company and a claim relying on the doctrine of 

res ipsa loquitur as to Bridger Bowl. 

Defendants answered generally denying all allegations. The 

district court dismissed the action as to defendant Riblet Tramway 

Company and no appeal is involved with Riblet. The jury returned 

a verdict against defendant Bridger Bowl in the amount of $30,886.90. 

As plaintiff, who was skiing at Bridger Bowl as a season 

ticket holder which entitled him to ride all lifts, was proceeding 

up the Bridger chair lift there was a sudden swirl of snow and 

increase in the wind at a point 40 to 50 feet from Tower 3. The 

cable holding the chair derailed from the sheave wheels on Tower 3 

causing plaintiff's chair to drop to the ground, rebound and throw 

plaintiff to the ground. Plaintiff was 71 years old at the time. 

He was severely injured. 

Defendant Bri-dger Bowl operates a recreational ski area, 

including four lifts. The area is operated under a special use 

permit from the United States Forest Service and is subject to its 

regulations and inspection. The area is inspected each year and 

had been approved for the 1971-72 ski season. 

On February 22, 1972 plaintiff had been skiing in the morning. After I-unch the wind picked up so that skiing was not too 

pleasant on the Alpine lift where he had been skiing. He decided 
to go to Deer Park lift which is a more protected area. To get 

to that area he used the Bridger lift. The wind was stronger and 

drifting or blowing snow was noticeable. The Deer Park lift had 

been shut down because of the high wind. 

On that day the Bridger lift was being operated in spite of 

prior notice of a malfunction of a derail circuit switch. The 

failure of this switch to operate would have either an accelerative 

or dampening force on the velocity with which the cable would rebound. 

Investigation of the accident was conducted on February 23, 

1972 by Ross MacPherson and Leroy Schultz, United States Forest 

Service employees, and by Emil Cochand, Wes Hayes and George Rule, 

employees of Bridger Bowl, A written report was submitted by 

Bridger Bowl to the State Aerial Tramway Board. The Bridger employees found no defect in the lift and specifically no defect in 

or misalignment of the sheave wheels located at Tower 3 requiring 

repair or replacement. 

MacPherson was the Forester in charge of the area. Schultz 

was Regional Ski Lift Engineer responsible for ski areas. MacPherson 

was at the site of Tower 3 but remained on the ground at the time 

of the investigation. Schultz went up the tower with Bridger Bowl 

employees and inspected alignment and condition of the sheave wheels. 

Schultz prepared an accident investigation report which was, in 

part, admitted into evidence, More will be said later concerning 

this report, 

The issues on appeal are: 

1. Admissibility of a forest service report. 

I) 

1 

i 2. The duty of care owed to plaintiff. 

3, Instructions given and refused. 

Bridger Bowl submitted a written report to the State Aerial 

Tramway Board dated February 24, 1972. That report stated: "Derailment due to wind (twister)." and "wind was only cause of deropement." Neither Forester PlacPherson nor Bridger Bowl employees 

Cochand, Hayes or Rule discovered any defect in the lift and specifically no defect in or misalignment of the sheave wheels located at 
, Tower 3, requiring repair or replacement. MacPherson, for the 

Forest Service, authorized resumption of operation of the lift 

the day following the inspection without change or restriction. 

A review of the testimony shows clearly that plaintiff 

endeavored to show negligence on the part of Bridger Bowl by a 

showing that deropement was caused by misalignment of the sheaves 

carrying the cable at Tower 3. plaintiff's witness Sowder, an 

official of Riblet Tramway Company, testified to the effect that a 

misalignment of the sheaves of three inches would have an effect 

which would result in the cable coming out of the sheave easier. 

To establish that this misalignment condition existed at the time 

of lai in tiff's accident, plaintiff relied on an undated accident 

investigation report signed by Schultz, the Forest Service Regional 

Ski Lift Engineer. 

Plaintiff first attempted to introduce the evidence through 

witness Cochand, Bridger owl's manager. The court sustained an 

objection that the evidence was an interoffice memorandum and 

report between one department of the Forest Service and anoth.er 

and was hearsay and incompetent. plaintiff's next effort was to 

inquire about the reports from Sowder and again the court sustained 

Bridger owl's objection on the grounds that the report was hearsay; 

lack of opportunity to cross-examine and, tb.t the testimony sought 

would be prejudicial on a primary issue of the case. Plaintiff's 

third attempt was ultimately successful and the report was admitted 

on the basis of a foundation laid through MacPherson. 

At the first attempt by plaintiff to introduce the report, 

counsel for Bridger Bowl conceded that the copy of the report was 

a true and accurate copy, but that was all. Plaintiff sought to 

introduce it under the Uniform Business Recordsas Evidence Act, 

section 93-801-2, R.C.M. 1947. To give a word picture of the 

situation, we quote excerpts of testimony regarding the report: 

''1~~. WELLCOME: We will offer in evidence, Your Honor, 

plaintiff's Exhibit 15, under the Uniform Business 

Records, as evidence, Act. 
"MR. IcKENZIE: May I voir dire? 

"THE COURT : Yes, you may. 

l'1.1~. McICENZIE: Mr. MacPherson, you have testified 

that you were present during the course of the 

investigation. You did not prepare this report; did you? 

''TIIE WITNESS : No. 

"1~4R. McKENZIE: And as a matter of fact this report was 

sent directly to and was a part of the files of the 

regional office in Missoula; is that true, sir? 

"THE WITNESS: Yes. 

"PIZR. McMENZIE: You did not ever see this report until 

about two days ago; is that correct, sir; or, three days 

ago ? 

"WITNESS: Yes; last week sometime. 

"I.IR.I~CKENZIE: Yes. So this report and the information 

contained therein can not be authenticated by you from 

your personal recollection or knowledge gained in the course 

of the investigation; isn't that true? 

"MR. WELLCOME: I object to that question, if it is on voir 

dire. That is not an element of the Uniform Business, as 

records evidence Act. 

"THE COURT: Overruled. You may answer. 

"THE WITNESS: Would you try that again. 

II (Reporter read last question.) 

"THE COURT: I am letting this in on the basis of source 

of information under the Uniform Business Records. All 

right. 

"THE WITNESS: I really don't understand it, the details 

of the question. I stayed down on the ground and Schultz 

went up on the lift with Bridger owl's man and made the 

inspection. 

"HR. McKENZIE: So, any comments as to what were observed 

there that are contained in this report are solely history, 

and you cannot testify to such information from your own 

personal knowledge or observation? 

"THE WITNESS: hat's right. 

"MR. T4cI(ETJZIE: And. as a matter of fact as you have 

testified, you are not the custodian of this particular 

record, are you, sir? 

"THE TrJITNESS: No. 

"1.IR. McKENZIE: The custodian is in Missoula? 

"THE WITNESS: hat's right. 

J; Jc Jc 

''MR. McKEldZIE: We will object, if the Court please, on 

the gound and for the reason that the proposed exhibit 

is based on hearsay, as to this Defendant, The exhibit 
contains information pertinent to a primary issue 

in the case. And its admission into evidence would 

be prejudicial to the Defendant, Dridger Bowl, on 

the ground and for the reason that it would be prevented from cross-examining the author of the report. 

And the best evidence, is likewise, the testimony 

of the author of the report. 

"l.1R. ANGEL: May I have one question on voir dire? 

"THE COURT: Yes, you may. 

"lvfR, ANGEL: In view of the fact that this document 

did not reach your files until last week, in the month 

of March, 1973, are you really able to say when the 

report was prepared by LeRoy Schultz? 

"MR. ANGEL: I have no objections , Your Honor, but I 

just wanted to find that out. 

"THE C0UR.T: * J" Let the record show the jury is 

outside the presence of the Court. I will hear you 

Mr, Wellcome, on this. 

"MR. WELIACOPE: Well, Your Honor, my position, simply 

stated, is that it is admissible under the Uniform 

Business Records Act. We had an attorneys pre-trial 

conference the other day and there was never any indication given to me that I would have to call somebody from 

Missoula, who was the actual custodian of this record, 

to lay a proper foundation for it. It was my understanding 

that there was no problem as to the foundation, and there 

could be other objections but not as to the foundation, 

that this was a true report and record of the Forest 

Service. All of these other objections are being interjected, and I have no opportunity to meet this evidence 

because it is a regional thing from the Forest Service 

in Missoula. MacPherson did receive the report and is 

a custodian here of the report, and he made the investigation with Mr. Schultz. 

As a matter of fact, may I ask Mr. MacPherson a 

couple of questions outside the presence of the jury? 

"THE COURT: Yes, you may. 

"Q. lsnlt it true that you had conversations with Hr. 

Schultz pertaining to what he found in his investigation? 

A. Yes, 

"Q. And didn't he relate to you. generally some of the 

things that are contained in this report? A. Some of the 

things were new to me when I saw it. 

"Q, Not the conclusion or anything, but 1 mean, the 

things that he checked and what he did? Not what hearsay 

he got, not to whom he talked, but the investigation 

generally, didn't he discuss that with you? A, We had 

different motives for making inspections. I asked him to 

tell me if the lift was safe to operate again to certify 

to me it was safe. That is what I was concerned with. At 

the end of the day, he told me the lift could be opened to 

the public the next day. 
"Q. In connection with whether this was prepared 

immediately or shortly thereafter, isn't it true 

that you had some knowledge of this report--even if 

you didn't have a copy--shortly after it was prepared 

and submitted? A. Yes. 

"?.IR. WELLCOME: Again, Your Honor, I am frankly surprised, and if this is going to be the condition, then 

I would like to close my testimony and request a continuance to bring somebody from !.Iissoula. but, I didn't 

think I would have to do that. 

"MR. IfcKENZIE: I raise this point only because this 

man is not the custodian under he Uniform Business 

Records Act. The real gist of my objection is that that 

Act does not allow the introduction of hearsay testimony 

in the form of an official report based on the statement 

someone makes who is not available for cross-examination. 

And that is exactly the philosophy. 

"BY MR. McKEMZIE: 

"Q. Mr. MacPherson, this accident investigation report 

was made to and retained by the chief counsel of the 

regional office; is that true, sir? A. Correct. 

"Q. And this was kept by him, and not made available by 

reason of requirements concerning possible litigation; 

isn't that true? A. Yes. 

"Q. Now, this report prepared by Mr. Schultz, as you have 

said, relates to certain findings concerning sheave 

assemblies, etc., which were not observed by you 

isn't that true? A. That's right. 

"Q. There is a reference here to alignment, checking 

alignment. Did you personally observe any misalignment 

of the sheaves from where you were? A. No; I was too 

far away. 

''Q. You were on the ground?" 

The edited report of Schultz, disputed Exhibit 15, provides 

the only basis upon which plaintiff rests his claim that there was 

a misalignment or defect in the sheave wheels which caused the deropement and supports the version of plaintiff's testimony that the 

cable merely rolled off the side of the sheave wheels rather than 

being blown off by the wind. Clearly the report had a prejudicial 

effect. 

Plaintiff argues the effect of the misalignment statements 

in the report was not prejudicial in any event because there was no 

proof the misalignment was the cause rather than the result of the 

deropement. As we have observed heretofore, plaintiff was clearly 

testifying that the cable merely rolled off the side of the sheave. 
Plaintiff further argues that in view of the operation during 

extreme wind conditions, the absence of cable catchers and nonoperation of the derail safety circuit, there was ample evidence 

of negligence apart from the evidence of misalignment. Perhaps 

so, but the introduction of the report under circumstances such 

as here could not help but be prejudicial. All of the persons 

present at the inspection said there was no misalignment while the 

report stated there was, and that "The Area [personnel] corrected 

this alignment in my presence. 11 

As IYiacPherson's testimony indicates, the report was 

made for the purpose of possible litigation and retained by the 

regional counsel for the Forest Service. Plaintiff did not proceed 

under Rule 36, M.R.Civ.P., and request an admission as to the facts 

and genuineness of the report by furnishing a copy. Neither a 

true copy nor the original has ever been made available. What 

has been expunged and what attachments were eliminated does not 

appear. Here plaintiff made no showing other than he was producing 

the altered and expurgated copy of the report which the identifying 

witness l4acPherson had received from its custodian. 

It is apparent the report was simply not a business record 

as contemplated by section 93-801-2, R.C.M. 1947. Nor is it admissible under section 93-901-1, R.C.M. 1947, the Uniform Official 

Reports as Evidence Act. Richardson v. Farmers Union Oil Co., 131 

Mont. 535, 312 P.2d 134. Unsworn reports where there is no right 

to cross-examine come within the hearsay rule and are inadmissible. 

Shillingstad v. Nelson 141 Mont. 412, 378 P.2d 393. 

The admission of the report over objection was error and 

requires a new trial. 

The second issue on appeal regards the duty of care; that is, 

whether the status of a ski lift is a common carrier and the duty 

owed a passenger for hire applies, or whether the duty owed is 

reasonable care, 

The trial court instructed: 
I I At the time of the accident in question, the 

defendant Bridger Bowl was a common carrier 

operating a ski lift on which the plaintiff was 

a passenger for hire. I I 

"YOU are instructed that the defendant Bridger 

Bowl is a common carrier of persons for reward. 

Such carriers are obligated to carry safely those 

people who they take onto their transportation 

facilities. To their passengers they owe both a 

duty of utmost care and the vigilance of a very 

cautious person. Such carriers are responsible 

for any, even the slightest, negligence and are 

required to do all that human care, vigilance 

and foresight reasonably can do under all the 

circumstances. 11 

Eridger Bowl argues that the decision and ruling of the trial 

court on the question of the duty of care owed to the plaintiff was 

error in that it was in direct conflict first, with the decision 

in Brown v. Columbia Amusement Co., 91 Mont. 174, 6 P.2d 874, and 

second, the specific language of section 69-6615, R.C.M. 1947, which 

is part of the Passenger Tramway Act of 1971. 

Brown followed the law generally as to the duty of an owner 

of a place of anusement to his patrons, which was that of reasonable 

or ordinary care. An earlier case, Phillips v. Butte Jockey Club 

& Fair Assn., 46 Mont. 338, 127 P. 1011, specifically rejected the 

analogy between a passenger of a common carrier for hire and a 

patron of an amusement place. 

In 1971 the Passenger Tramway Act, sections 69-6601 through 

69-6617, R,.C.M. 1947, was enacted. Section 69-6601 states the policy 

of the state: 

If+; -1. 

#8 * it shall be the policy of the state to 

protect its citizens and visitors from unnecessary 

mechanical hazards in the design construction and 

operation of passenger tramways, but not from the 

hazards inherent in the sports of mountaineering, 

skiing and hiking, or from the hazards of the area 

served by the skier or other sportsman * ik. l I 

Section 69-6615, R.C.M. 1947, provides: 

l t Passenger tramways shall not be construed to be 

common carrier or public utilities for the purposes 

of regulation within the meaning of the laws of 

the state of Montana. It 
Plaintiff argues simply that section 69-6615, R.C.M. 1947, 

has to do with rate structure and has no limitation upon the 

construction of a proper legal standard of care which should be 

applicable to a ski lift, As to section 69-6601, R.C.M. 1947, 

plaintiff argues he was not injured because of a hazard inherent 

in the sport of skiing; but rather, he was injured because of 

negligence in design, construction and operation of the ski lift. 

However, the words "unnecessary mechanical hazardsf' when 

coupled with these words also appearing in section 69-6601 he 

state, through the passenger tramway safety board, shall register 

all passenger tramways in the state, establish reasonable standards 

of design, construction and operational practices", establishes 

a standard of care. (Emphasis supplied.) 

The duty is one of reasonable or ordinary care and Instructions 

No.. 16 and 17 should not have been given. 

Bridger Bowl also quarrels with Instruction No. 17 in that 

it goes far beyond the duty of care even for a common carrier. 

We need not determine this here, but refer to Risken v. Northern 

Pac. Ry., 137 Mont. 57, 350 P.2d 831, 

Plaintiff cites Summit County Development Corporation v. 

Bagnoli, 166 Cob 27, 441 P.2d 658, 664, where the Colorado Court 

said: 

"This is the first occasion we have had to consider 

the degree of care required of a ski lift operator. 

We have noted in other jurisdictions where the sport 

of skiing has also become highly popular, courts 

have imposed on ski lift operators a common carrier 

status, thus requiring that a higher degree of care 

be exercised in the operation of this type of facility. 

[Citing cases ] 

"~ecause of the existence of the above described rule 

of Lewis, supra, and the nature and purpose of our 

statutes pertaining to common carriers at the time 

of this accident, there was no need to designate the 

ski lift operator as a common carrier in Instruction 

No. 15. However, this is of no consequence, since the 

paramount purpose of Instruction No. 15 was to convey 

to the jury the rule of law that a chair ski lift 

operator must exercise the highest degree of care commensurate with the practical operation of the ski lift, 

It accomplished that purpose. The defendant's contention 

that the giving of this instruction constituted prejudicial error is rejected. I1 
This case, of course, does not construe ~ontana's Passenger 

Tramiay Act nor case law on recreational facilities. 

The issues concerning instructions have been answered in 

our discussions heretofore, so we need not discuss them further. 

The judgment is reversed and the cause is remanded for new 

trial. 

We Concur: 

' Justices. \ I 

i