PUBLISH

________

UNITED STATES COURT OF APPEALS Filed 7/5/96 TENTH CIRCUIT

________ BECKY J. KIDD, ) ) Plaintiff-Appellant, ) ) v. ) No. 95-2066 ) TAOS SKI VALLEY, INC., ) ) Defendant-Appellee. )

________ APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(CIV-93-327-JC)

________ Grant Marylander (Jim Leventhal and Natalie Brown, of Leventhal & Bogue, Denver, Colorado, and Marion J. Craig, III, Roswell, New Mexico, with him on the briefs) of Leventhal & Bogu e, Denver, Colorado, for Plaintiff-Appellant. Joe L. McClaugherty (Jere K. Smith with him on the brief), Santa Fe, New Mexico, for Defendant-Appellee.

________ Before BRORBY, BARRETT, and LIVELY*, Circuit Judges.

________ BARRETT , Senior Circuit Judge.

________ *The Honorable Pierce Lively, Senior Judge, United States Court of Appeals for the Sixth Circuit, sitting by designati on.

________ Becky J. Kidd (Kidd) appeals from a memorandum opin ion and- 2 -

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 recei ved when she crossed a diversionary rope located on an area perm anently marked as a slow skiing area by a huge orange banner.” (Appellant’s Appendix, Vol. II, Memorandum Opinion, UndisputedFacts , at 445). “The black and yellow rope, held up by bamboo pole s and marked with strips of orange fluorescent flagging, was int ended to close off a portion of the mountain to prevent collisions between skiers returning to the base from different sides of the m ountain.” Id

. “Plaintiff, an experienced TSV skier, never saw the rope closure.”
Id . at 445-46. Kidd filed a complaint in which she alleged, interalia , that: TSV, in installing the diversionary rope, had breac hed 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 su spension of the rope between two poles (Count I); TSV had acted wit h wanton or gross negligence in maintaining the unmarked rope a nd she was, accordingly, entitled to punitive damages (Count II ); TSV breached it contractual obligations under a special use perm it with the United States under which she was a third party ben eficiary (Count III); and TSV’s installation of the rope created aninherently- 3 -

dangerous condition, thereby imposing the duty of h ighest care on TSV (Count IV). TSV moved to dismiss Counts II, III, and IV for fa ilure to state a claim upon which relief could be granted. The district court denied TSV’s motion to dismiss Kidd’s Count I I punitive damage claim, concluding that although the Act was silent on the availability of punitive damages, general New Mexic o law principles allowed for the recovery of punitive damages in lim ited circumstances, including conduct committed with a w anton disregard of a plaintiff’s rights. The district court did, h owever, grant TSV’s motion to dismiss Counts III and IV, Kidd’s third party beneficiary and inherently dangerous condition clai ms. In dismissing Count III, the district court conclud ed that the “language of the statute indicates that the leg islature intended the Act as the sole remedy for skiers” andthat New Mexico case law “provide[s] persuasive authority indicatin g that the state courts would reject Plaintiff’s theory of liabilitybased on a third party beneficiary cause of action.” (Appella nt’s Appendix, Vol. I at 73-74). In dismissing Count IV, the dist rict court concluded that the inherently dangerous activity do ctrine “is inconsistent with the Act because it would permit t he imposition of additional duties on ski operators” and that the “A ct was intended to limit the duties which can be imposed upon ski a rea operators [and] therefore forecloses the application of the” doctrine. Id

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at 75-76. Kidd’s subsequent motion for reconsidera tion of the dismissal of Count III was denied. Thereafter, TSV moved for summary judgment on Kidd ’s remaining claims and Kidd moved for partial summaryjudgment on the issue of TSV’s negligence. Following briefing, the district court entered a memorandum opinion and order granting TSVsummary judgment and dismissing Kidd’s complaint with preju dice. 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 con trol created a genuine issue of material fact making summary judgm ent improper, (Appellant’s Appendix, Vol. II at 447); Kidd failedto produce competent evidence from which a reasonable juror co uld conclude that the rope closure was not in accordance with in dustry usage and National Ski Area Association (NSAA) standards, id . at 449; and, no reasonable juror could conclude that the closure it self created a hazard under the Act requiring TSV to warn skiers o f its presence.
Id . at 451. On appeal, Kidd contends that the district court er red when it granted TSV’s motion for summary judgment, barred h er from obtaining critical discovery, and dismissed her thi rd party beneficiary claim.
I. Kidd contends that the district court erred when it granted- 5 -

summary judgment in favor of TSV. Kidd argues that summary judgment was erroneous because she presented substa ntial evidence that TSV breached its duties under §§ 24-15-7(I) an d (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’nInt’l. , 76 F.3d 1509, 1516 (10th Cir. 1996). Summary judgment is a ppropriate if there is no genuine issue as to any material fact a nd the moving party is entitled to judgment as a matter of law. H agelin for President Comm. of Kan. v. Graves , 25 F.3d 956, 959 (10th Cir. 1994), cert . denied , ___ U.S. ___ (1995). When applying this standard, we examine the factual record and reasona ble inferences therefrom in the light most favorable to the non-mo ving/opposing party. Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995).

a. Kidd asserts that summary judgment was inappropriat e because there was substantial evidence that TSV breached it s 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 cor rect particular hazards or dangers known to the operator where feas ible to do so.” Kidd argues that TSV breached this duty when it ins talled the- 6 -

single strand diversionary rope and blocked off an otherwise skiable area without giving the skier sufficient wa rning. The district court rejected these arguments, concludingthat: The evidence submitted by the parties in this case demonstrates as a matter of law that the TSV rope closure, by virtue of its location and purpose, can not qualify as a hazard under the Act. The rope is loc ated in a well-marked slow skiing zone near the base of the mountain. The closure serves to prevent, not cause , collisions between skiers returning to the base are a. Moreover, the undisputed evidence shows that the ro pe has been in place since 1978, and [over one] million s kiers have managed to ski past it without injury. (Appellant’s Appendix, Vol. II at 447). Kidd maintains that this conclusion was erroneous a nd that summary judgment improper when, as here: TSV’s expe rt 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 c ould not see it. (Appellant’s Appendix, Vol. II at 333); the evidenc e was undisputed that Kidd, an experienced TSV skier did not see the rope, id . at 445-46; Kidd presented the testimony of another sk ier 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 r ope,” id . at 309; and photographs taken immediately after the ac cident demonstrated the rope’s lack of visibility against the white background. TSV responds that summary judgment was proper basedon the undisputed evidence that the area of Kidd’s acciden t had been marked off and closed to skiing for at least twelve years without- 7 -

incident and its expert’s testimony that the rope d id not create a hazardous situation and that the rope complied withthe Act. TSV also maintains that a ski area operator’s duty to w arn 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 k new that the rope closure was a hazard. Although the determination of “[w]hether a duty [un der the Act] has been breached is a question of fact,” Lop ez v. Ski Apache
Resort , 836 P.2d 648, 655 (N.M. Ct. App.), cert . denied , 113 N.M. 815 (1992), the determination of “[w]hether a dutyexists is generally a question of law for the court to determ ine.” Id . As a matter of law, the duty imposed on ski area opera tors by § 24-15- 7(I) “is limited to situations where the particularhazard is both known to the ski area operator andwarning of or correcting the particular hazard is feasible .” Id . 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 d iversionary 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 ma naged to ski past it without injury. Therefore, TSV was entitle d to judgment on this claim as a matter of law.- 8 -

b. Kidd reasons that she presented substantial evidenc e that TSV breached its duty under § 24-15-7(C) of the act ma king summary judgment on this claim improper. Section 24-15-7(C) provides: Every ski operator shall have the following duties with respect to the operation of a skiing area:
* * * to mark conspicuously the top or entrance to each s lope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, tr ails or areas marked at the top or entrance with the appropriate symbols as establishedorapprovedbythe national ski area association

. . . . (Emphasis added). Kidd asserts that she presented evidence which crea ted a triable issue on whether TSV breached its duty unde r § 24-15-7(C) to comply with NSAA standards when it installed a s ingle strand diversionary rope rather than multiple ropes or oth er barriers. Kidd argues that the evidence included the fact th at although the NSAA had no written standards for marking closures, industry practice dictated the proper use of ropes for closu res; TSV’s expert on NSAA standards stated that rope closures should be as visible as possible, that multiple ropes create a m ore effective barrier than single ropes, and that unless there ar e indications to the contrary, three rope barriers should be used ra ther than a single rope (Appellant’s Appendix, Vol. II at 335, 340 and 343);- 9 -

and there was nothing to prevent TSV from using mul tiple ropes. Kidd maintains that this evidence created a triable issue on whether TSV complied with NSAA standards making summary judgment on this claim improper. TSV responds that: the only issue is whether the r ope closure at issue complied with NSAA standards; Kidd is atte mpting to divert the inquiry away from whether TSV complied with NSAA standards by focusing on what TSV could have done rather than onwhat it did; and its expert testimony established, without excep tion, that the rope closure complied with NSAA standards. We agree with the district court’s findings that Ki dd 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 c losure fell outside industry norms established by NSAA standard s.” (Appellant’s Appendix, Vol. II at 450). Kidd failed to meet he r burden as a nonmoving party of producing specific facts “by anyof the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves” to avoid TSV’s properly suppo rted summary judgment motion. Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). Her conclusory allegations are not suffici ent to defeat TSV’s motion. Milton v. Scrivner, Inc. , 53 F.3d 1118, 1125 (10th Cir. 1995).- 10 - II. Kidd contends that the district court erred when it barred her from obtaining critical discovery relevant to issu es raised in the summary judgment proceedings. Kidd maintains that the district court abused its discretion when it prevented her f rom deposing TSV employees and from designating a visual acuity expe rt.

a. Kidd states that the district court abused its disc retion when it prevented her from deposing TSV employees concer ning the hazardous nature of the rope. Under Fed. R.Civ. P. 26(c), the district court may limit or bar discovery. The dec ision of a district court to enter a protective order under Ru le 26(c) is reviewed for an abuse of discretion. Boughton v. C otter Corp. , 65 F.3d 823, 828 (10th Cir. 1995). Under this standa rd, “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 ci rcumstances.’” 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 complian ce with both TSV and the Act’s standards. They also testified that patrol members were instructed to insure that markings were visibl e. When Kidd attempted to depose ski patrol members on their tra ining and- 11 -

whether the rope in question was appropriately mark ed, 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 Defend ant seeks to bar the deposition of the Chief Groomer and the Assista nt Head of the Ski Patrol at this time, based upon the court’s fin ding that subordinate employees should not be deposed to the extent the same information may be obtained from supervisors.” (Ap pellant’s Appendix, Vol. I at 109). Kidd objected to the magistrate’s order. Thereafte r, the district court entered a memorandum opinion overrul ing Kidd’s objections, finding, interalia : Plaintiff next objects to Magistrate Judge Svet’s limitation of questioning as to certain non-supervi sory employees. The court has reviewed the deposition testimony provided by both the Plaintiff and Defend ant and fails to identify the inconsistencies claimed by the Plaintiff. In fact, Plaintiff’s assertions misstat e the evidence. The clear import of all of the depositio ns is that the supervisory [personnel] are ultimately responsible for the marking of the trails, and that the non-supervisory patrol members have little if any discretion in deciding how trails and hazards are t o be marked. (Appellant’s Appendix at 442B-42C). We agree. Michael Blake, TSV’s General Manager, te stified that he had the “ultimate responsibility” for prope rly marking TSV. (Appellant’s Appendix, Vol. II at 285). Under thes e circumstances, we hold that the district court did not abuse its d iscretion in overruling Kidd’s objections to the magistrate judg e’s order.- 12 - b. Kidd declares that the district court abused its di scretion when it prevented her from designating a visual acu ity expert. The decision to allow the testimony of an expert not de scribed or listed in the pretrial order rests with the sound d iscretion 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 id entify her liability expert witnesses by September 15, 1993. Kidd did not identify any liability expert witnesses by that dat e. However, Kidd retained additional counsel on January 15, 199 4. On January 21, 1994, Kidd’s additional counsel filed a motion to add Freeman Hall, a visual acuity specialist and engineer, as a n expert witness. The magistrate judge denied Kidd’s motion

. Following a review of Kidd’s objections to the magi strate judge’s order, the district court entered a memoran dum opinion overruling Kidd’s objections, stating:

Plaintiff . . . objects to the Magistrate Judge’s refusal to permit the endorsement of an expert witn ess . . . . Plaintiff had sought to add an additional ex pert witness over four months after the deadline for designating experts had passed. Plaintiff has prov ided no reason for her delay, and the court can find no reason other than the recent addition of new counsel for t he Plaintiff. The court therefore finds that Magistra te Judge Svet’s order denying the addition of the expe rt . . . is not clearly erroneous or contrary to law. (Appellant’s Appendix at 442B).- 13 -

Kidd asserts that the district court abused its dis cretion when it prevented her from designating a visual acu ity expert who would have testified that the rope in question was not visible when, as here: the trial date had not been set; TSVwould not have been prejudiced; she had been diligent, with the ex ception of designating the expert, in conducting her discovery ; she did not appreciate the need for a visual acuity expert unti l she retained additional counsel; and a visual acuity expert was a critical expert who would explain to the jury what factors a ffected the rope’s visibility and why it could not be seen by s kiers. We hold that the district court did not abuse its d iscretion in refusing to allow Kidd to designate a visual acu ity expert. Kidd’s request to designate an expert was made more than four months after the time period for designating such e xperts 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 t hat the district court abused its discretion, particularly in that it was undisputed that Kidd, “an experienced TSV skier, ne ver saw the rope closure.” (Appellant’s Appendix, Vol. II, Mem orandum Opinion, UndisputedFacts , at 445).1 Section “24. Safety ” of the Special Use Permit between

TSV and the Forest Service provided in part:

The permittee [TSV] shall conduct the operations authorized by this permit with full recognition of the need for public safety. In furtherance of this requirement, the permittee shall prepare a safety p lan designed to provide adequate safety to the users of the permitted area and facilities. The plan shall have written approval of the Forest Supervisor prior to the operation of the facilities for public-use purposes

. The plan shall include, but shall not be limited to , avalanche prevention and control; amount and kind o f rescue equipment; conditioning of trails; and frequ ency of permittee inspection of area, equipment, machine ry, and uphill facilities. (Appellant’s Appendix, Vol. I at 37). - 14 - III. 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. Se ymour v. Thorton , 79 F.3d 980, 984 (10th Cir. 1996). In Count III, Kidd alleged, interallia : Under the terms of the Permit between the United St ates and the Defendant, Defendant is to conduct the oper ations of the ski area, with full recognition of the need of public safety, 1 and is to regularly inspect the ski area and correct any hazardous conditions. The Defendant’s maintaining and permitting the use of an unmarked Rope in the middle of the ski area constituted a breach of this lease term. The United States . . . in granting the Defendant a right to use [its] property, required that the oper ation be conducted with full recognition for the need of public safety. The people of the United States, includin g the Plaintiff, are third-party beneficiaries of the provisions the Lease Agreement between the United S tates- 15 -

and the Defendant. The Defendant’s operation of th e ski area, in violation of the needs for “Public Safety” , constitute a breach of the Agreement. Plaintiff, was a third-party beneficiary of this Lease Contract, hadthe right to expect the contract to be performed and therefore should be allowed to recover her damages caused by Defendant’s breach. (Appellant’s Appendix at 5). (Emphasis added). In dismissing Count III, the district court conclud ed: The question before the court is whether the Act provides the exclusive remedy available to the Plai ntiff.
* * * The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘[u]nless a ski operat or is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie ag ainst such ski area, operator by any skier [or his representative].” . . . Under New Mexico law when t he meaning of a statute is plain, it must be given eff ect, and there is no room for construction . . . . Here, the language of the Act is clear and unambiguous, stati ng that no action shall lie against a ski area operato r unless the operator violates the Act and that viola tion is the proximate cause of the skier’s injury. The precise question of whether a ski operator is liable to a plaintiff as a third party beneficiary has not been addressed by any appellate court in New Me xico. In Wood v. Angel Fire Ski Corp. , 108 N.M. 453, 355 (Ct.App. 1989), the New Mexico Court of Appeals hel d that the Act ‘limited in part the tort liability of ski operators.’ Later, in Lopez v. Ski Apache Resort , 114 N.M. 202 (Ct.App. 1992), the plaintiff sued for to rt damages resulting from personal injury. Again, the Court of Appeals held that the ‘provisions of the Act wer e intended by the legislature to exclusively control each of plaintiff’s claims herein.’ From the above cases, it is clear that the Act is the sole remedy for an action based in tort. In re gards to a contract claim, however, the above cases provi de- 16 -

only dicta. Yet, these opinions provide persuasive authority indicating that the state courts would re ject the Plaintiff’s theory of liability based on a thir d party beneficiary cause of action. Since the clear language of the Act must be given its plain effect, this Court concludes that a state court hearing this iss ue would reject the third party beneficiary theory con tained in Count III. (Appellant’s Appendix, Vol. I at 73-74). We agree with the district court that New Mexico ca se law provides “persuasive authority indicating that the state courts would reject Kidd’s theory of liability based on a third party beneficiary cause of action.”
AFFIRMED.