No. 12577 INTHE 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 AllenR. 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

## 1974Mr. JusticeWesley Castles delivered the Opinion of the Court.

This isan appeal from ajudgment against defendant and from an order denying motions for a new trialand judgment notwithstanding the verdict. The casewas 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 claimbased on the doctrine of strictliabilityand breach of implied warranty as to Riblet Tramway Company and a claimrelying on the doctrine of

res ipsa loquitur as toBridger Bowl. Defendants answered generally denying allallegations. The district court dismissed the action as to defendant Riblet Tramway Company and no appeal isinvolved with Riblet. The jury returned

a verdict against defendant Bridger Bowl inthe amount of $30,886.90. As plaintiff, who was skiing atBridger Bowl as a season ticket holder which entitledhim to ride alllifts, was proceeding up the Bridger chair lifttherewas a sudden swirl of snow and increase inthewind 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 todrop tothe ground, rebound and throw plaintiff tothe ground. Plaintiff was 71years old atthe time. He was severely injured. Defendant Bri-dger Bowl operates a recreational skiarea, including four lifts. The area isoperated under a specialuse permit from the United States Forest Service and is subject to its regulations and inspection. The area isinspected 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 thewind picked up so that skiingwas not too pleasant on theAlpine liftwhere he had been skiing. He decidedto go toDeer Park liftwhich 

### is a more protected area. To get to that area he used the Bridger lift. The wind was stronger and drifting orblowing snow was noticeable. The Deer Park lifthad been shut down because of the high wind. On that day the Bridger liftwas being operated in spite of prior notice of a malfunction of a derail circuit switch. The failure of this switch to operatewould have either an accelerative

or dampening force on the velocitywithwhich the cablewould rebound. Investigation of the accident was conducted on February 23, 1972by 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 StateAerial Tramway Board. The Bridger employees found no defect inthe liftand specificallyno defect in

or misalignment of the sheavewheels located atTower 3requiring repair or replacement. MacPherson was the Forester incharge of the area. Schultz

was Regional Ski Lift Engineer responsible for ski areas. MacPherson

was atthe siteof Tower 

### 3 but remained on the ground atthe time of the investigation. Schultzwent 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 willbe said laterconcerning thisreport, 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 StateAerial Tramway Board dated February 24, 1972. That report stated: "Derailment due towind (twister)." and "wind was only cause of deropement." Neither Forester PlacPherson nor Bridger Bowl employees Cochand, Hayes or Rule discovered any defect inthe liftand specificallyno defect inormisalignment 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 shownegligence on the part of Bridger Bowl by a showing that deropementwas 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 anundated 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 evidencewas an interofficememorandum 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 reportwas 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 attemptwas 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 EvidenceAct, 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 thisreport; 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 inMissoula; isthat 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; lastweek sometime. "I.IR.I~CKENZIE: Yes. So this report and the information contained therein can not be authenticatedby you from your personal recollection or knowledge gained inthe course of the investigation; isn't that true? "MR.WELLCOME: I object to that question, if it is on voir dire. That 

### isnot 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 inon the basis of source of information under theUniform 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 liftwith Bridger 

### owl's man and made the inspection. "HR. McKENZIE: So, any comments as towhat 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 arenot the custodian of this particular record, are you, sir? 

### "THE TrJITNESS: No. "1.IR. McKENZIE: The custodian is inMissoula? "THE WITNESS: 

### hat's right. J; Jc Jc ''MR. McKEldZIE: We willobject, if the Court please, on the gound and for the reason that the proposed exhibit isbased 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 itwould be prevented from cross-examiningthe author of the report. And the best evidence, is likewise, the testimony of the author of the report. "l.1R. 

### ANGEL: May 

### Ihave one question on voir dire? "THE COURT: Yes, you may. "lvfR, 

### ANGEL: In view of the fact that this document did not reach your filesuntil last week, in the month of March, 1973, are you really able to saywhen the report was prepared by LeRoy Schultz?

"MR. 

### ANGEL: 

### Ihave 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. 

### Iwill 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 therewas never any indication given to me that 

### Iwould 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 therewas 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 

### Ihave 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 

### Iask Mr. MacPherson a couple of questions outside the presence of the jury? "THE COURT: Yes, youmay. 

### "Q. lsnltit true that you had conversationswith Hr. Schultzpertaining 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 formaking inspections. 

### Iasked him to tellme if the liftwas safe to operate again to certify to me it was safe. That iswhat 

### Iwas concernedwith. At the end of the day,he told me the lift could be opened to the public the next day.

### "Q. In connectionwith 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 

### Iwould like to close my testimony and request a continuance to bring somebody from !.Iissoula. but, 

### Ididn't think 

### Iwould have to do that. "MR. 

### IfcKENZIE: 

### Iraise this point only because this man is not the custodianunder 

### 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 someonemakes who isnot available for cross-examination. And that is exactly the philosophy.



### "BYMR. 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 thiswas keptby 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 referencehere to alignment, checking alignment. Did you personally observe any misalignment of the sheaves fromwhere youwere? 

### A. No; 

### Iwas too far away. ''Q. 

### Youwere on the ground?" The edited report of Schultz, disputed Exhibit 15,provides the onlybasis upon which plaintiff rests his claim that therewas

a misalignment or defect in the sheavewheelswhich caused the de

### ropement and supports the version of plaintiff's testimony that the cable merely rolled off the side of the sheavewheels 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 reportwas not prejudicial in any event because there was no proof the misalignmentwas the cause rather than the result of the deropement. As we have observed heretofore,plaintiffwas clearly testifying that the cable merely rolled off the side of the sheave.Plaintiff further argues that inview of the operation during extreme wind conditions, the absence of cable catchers and nonoperation of the derail safetycircuit, therewas ample evidence of negligence apart from the evidence of misalignment. Perhaps so, but the introduction of the report under circumstances such

ashere could not help but be prejudicial. Allof the persons present atthe inspection said therewas no misalignment while the report stated therewas, and that "The Area [personnel] corrected this alignment inmy presence. 11 As IYiacPherson's testimony indicates, the report was made for the purpose of possible litigationand 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 tothe 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 isapparent the reportwas simply not a business record

as contemplated by section 93-801-2, R.C.M. 1947. Nor isit admissible under section 93-901-1, R.C.M. 1947, the Uniform Official Reports as Evidence Act. Richardson v. Farmers Union OilCo., 131 Mont. 535, 312 P.2d 134. Unsworn reports where there 

### isno right tocross-examine come within the hearsay rule and are inadmissible. Shillingstad v. Nelson 141Mont. 412, 378 P.2d 393. The admission of the report over objectionwas error and requires a new trial. The second issue on appeal regards the duty of care; that is, whether the status of a ski liftis a common carrier and the duty owed a passenger forhire applies, orwhether the duty owed is reasonable care, The trialcourt instructed:II 

### At the time of the accident in question, the defendant Bridger Bowlwas a common carrier operating a ski lift onwhich the plaintiffwas a passenger for hire. II

"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 oweboth a duty of utmost care and the vigilance of a very cautiousperson. 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 plaintiffwas error in that it was in direct conflict first,with the decision in Brown 

### v. Columbia Amusement Co., 91Mont. 174, 

### 6 P.2d 874,and second, the specific language of section 69-6615,R.C.M. 1947,which is part of the Passenger TramwayAct of 1971. Brown followed the law generally as to the duty of an owner of a place of anusement to his patrons,whichwas that of reasonable

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

### FairAssn., 46Mont. 

### 338, 127 P. 1011, specificallyrejected the analogybetween a passenger of a common carrier for hire and a patron of an amusement place. 

### In 1971 the Passenger Tramway Act, sections 69-6601through 69-6617,R,.C.M. 

### 1947,was enacted. Section 69-6601states the policy of the state:

If+; -1. #8 

# * it shallbe 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. lI 

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

lt

### Passenger tramways shallnot 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.ItPlaintiff argues simply that section 69-6615, R.C.M. 1947, has to do with rate structure and has no limitationupon the construction of a proper legal standard of carewhich 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 indesign, construction and operation of the ski lift. However, thewords "unnecessary mechanical hazardsf'when coupled with these words also appearing insection 69-6601 

### he state, through the passenger tramway safetyboard, shallregister allpassenger tramways in the state, establishreasonable 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 quarrelswith InstructionNo. 

### 17inthat it goes farbeyond the duty of care even for a common carrier. We need not determine this here, but refer toRisken 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 

### isthe first occasion we have had to consider the degree of care required of a ski liftoperator. We have noted inotherjurisdictions where the sport of skiinghas alsobecome highly popular, courts have imposed on ski liftoperators 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 thenature and purpose of our statutes pertaining to common carriers atthe time of this accident, therewas no need to designate the ski liftoperator as a common carrier inInstruction No. 15. However, this isof no consequence, since the paramount purpose of Instruction No. 15was to convey to thejury 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 prejudicialerror is rejected. I1This 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 

### isreversed and the cause isremanded for new trial.

We Concur:

' Justices. 

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