Present: Koontz, Kinser, Lemons, and Mims, JJ., and Russell 

and Lacy, S.JJ. 

JEANNE VUICH 

v. Record No. 092249 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

GREAT EASTERN RESORT JANUARY 13, 2011 

CORPORATION, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Edward L. Hogshire, Judge 

In this interlocutory appeal filed pursuant to Code 

§ 8.01-670.1, the sole issue before us is whether the trial 

court correctly held that a snow tubing ride offered to the 

public was not an amusement device subject to regulation under 

the Virginia Amusement Device Regulations (“VADR”), 13 VAC 

§ 5-31-10, et seq. 

FACTS AND PROCEEDINGS 

The facts relevant to this appeal are not in dispute. 

Great Eastern Resort Management, Inc. owns and operates a snow 

tubing park on a mountainside in the Massanutten Resort. The 

snow tubing park, called the Peaked Mountain Express, is a 

steeply inclined slope, contoured, graded and groomed to 

create an undulating slope with chute-like lanes to guide the 

riders’ descent down the slope. The slope is covered by 

natural snow or man-made snow shot from snow cannons located 

on the slope and served by underground water lines. The 

riders stand on a conveyor belt, which takes them to the top 
of the slope. The riders then descend the slope on 

specialized inflated rubber donut-style tubes provided by the 

ride attendants. The riders do not control their path while 

descending the slope but are guided by the chute-like lanes. 

Rubber mats are placed in the chute-like lanes in a run-out 

area to slow and stop the riders at the bottom of the slope. 

A blue wall made of stadium padding is located at the end of 

the run. In 2005, the slope elevation of the snow tubing park 

was reconstructed and the park expanded by adding 

approximately five chute-like lanes.

On January 27, 2006, Jeanne Vuich went to the snow tubing 

park and rode down the slope on a tube. Vuich’s tube slid 

onto the run-out area at the end of the chute-like lane but 

the tube did not stop and she hit the blue wall located at the 

end of the run-out area, sustaining serious spinal injuries. 

Vuich filed a complaint against Great Eastern Resort 

Management, Inc., Great Eastern Resort Corporation, and The 

Resorts Companies, Inc. (collectively “Great Eastern”), 

seeking compensatory and punitive damages. 

Vuich asserted that her injuries resulted from negligent 

design and operation of the snow tubing ride. Vuich, in a 

motion to increase her ad damnum, further asserted that the 

snow tubing ride was subject to the provisions of the VADR 

2
relating to gravity rides.1 Vuich alleged that her injuries 

resulted from Great Eastern’s failure to comply with the 

regulations adopted relating to the design and construction of 

gravity rides. In response, Great Eastern filed a motion for 

partial summary judgment and for a declaration that the VADR 

did not apply to the operation of the snow tubing ride. 

Following further briefing and oral argument, the circuit 

court determined that the general provisions contained in Part 

I of the VADR refer to standards and regulations applicable to 

“amusement devices” and, therefore, a ride must qualify as an 

amusement device before it is subject to the VADR. Applying 

the definition of “amusement device” contained in the VADR2 – 

“(i) a device or structure open to the public by which persons 

are conveyed or moved in an unusual manner for diversion and 

(ii) passenger tramways” – 13 VAC § 5-31-20(A), the court 

determined that the snow tubing ride was not an amusement 

device because “a device or structure . . . that typically 

would be a building, a structure that is manufactured and is 

not a slope.” Concluding that the VADR did not apply to the 

 1

 The VADR defines a “[g]ravity ride” as “a ride that is 

installed on an inclined surface, which depends on gravity for 

its operation to convey a passenger from the top of the 

incline to the bottom, and which conveys a passenger in or on 

a carrier tube, bag, bathing suit, or clothes.” 13 VAC § 5-

31-20(A). 2

 The VADR was amended in 2008 but those amendments did 

not alter the provisions at issue in this appeal.

3
snow tubing park, the circuit court entered an order granting 

Great Eastern’s motion for partial summary judgment. 

Vuich filed a petition for certification of an 

interlocutory appeal pursuant to Code § 8.01-670.1. The 

circuit court entered an order acknowledging that there was 

“substantial ground for difference of opinion regarding the 

application of the [VADR] to the facts of this case,” that 

“this issue appears to be one of first impression,” and that 

determination of the issue presented in the certification 

“will be dispositive of a material aspect” of the pending 

proceeding. The order also recited that the circuit court and 

the parties agreed that seeking the interlocutory appeal was 

in the parties’ best interest. We granted Vuich’s 

interlocutory appeal and the sole issue before us in this 

appeal is whether the snow tubing ride operated by Great 

Eastern at the Massanutten Resort is an “amusement device” 

under the VADR.3

DISCUSSION 

 3

 In the circuit court and the pleadings filed in this 

Court, Vuich argued that a snow tubing ride that meets the 

definition of a “gravity ride” is subject to the provisions of 

the VADR pertaining to gravity rides regardless of whether 

that ride also qualifies as an “amusement device” as defined 

by the VADR. Vuich abandoned this argument during oral 

argument before this Court and thus the circuit court’s ruling 

has become the law of the case here. Covel v. Town of Vienna, 

280 Va. 151, 163, 694 S.E.2d 609, 616 (2010). 

4
 The circuit court concluded that the snow tubing park was 

not a “device or structure” and therefore could not qualify as 

an amusement device under the VADR. In making its decision, 

the circuit court did not reference any specific definition of 

“structure” or ”device,” stating only that an amusement device 

“typically would be a building, a structure that is 

manufactured and is not a slope.” The circuit court went on 

to say that the “tramway or the passenger conveyer or the stop 

at the bottom” would not “convert this slope into an amusement 

device.” The facts relating to this issue were not in dispute 

and the issue was resolved by the entry of a partial summary 

judgment. Under these circumstances, we review the circuit 

court’s judgment de novo. Schlegel v. Bank of America, 271 

Va. 542, 549, 628 S.E.2d 362, 365-66 (2006). 

Regulation of amusement devices is authorized by Code 

§ 36-98.3. That section delegates the regulatory authority to 

the Board of Housing and Community Development (“Board”). The 

definition of “amusement device” in subsection A of Code § 36-

98.3 states: 

(i) a device or structure open to the public by 

which persons are conveyed or moved in an unusual 

manner for diversion and (ii) passenger tramways. 

This Code section does not further define “device or 

structure;” however, the definitions contained in the Uniform 

5
Statewide Building Code, Code § 36-97, apply to Code § 36-

98.3. Code § 36-97 defines “structure” but the definition is 

not definitive or helpful in this case as it specifically 

identifies “amusement devices” as “structures” within the 

definition itself.4

 The Board promulgated the VADR establishing various 

requirements applicable to amusement devices. In 

promulgating the VADR, the Board adopted the definition of 

“amusement device” contained in Code § 36-98.3 and, like the 

Code section, did not further define “structure” or “device” 

and, consistent with the enabling legislation, incorporated 

the definitions contained in the Uniform Statewide Building 

Code, “unless the context clearly indicates otherwise.” See

 4

 Code § 36-97 provides that 

“Structure” means an assembly of materials 

forming a construction for occupancy or use 

including stadiums, gospel and circus tents, 

reviewing stands, platforms, stagings, 

observation towers, radio towers, water tanks, 

storage tanks (underground and aboveground), 

trestles, piers, wharves, swimming pools, 

amusement devices, storage bins, and other 

structures of this general nature but excluding 

water wells. The word “structure” shall be 

construed as though followed by the words “or 

part or parts thereof” unless the context clearly 

requires a different meaning. “Structure” shall 

not include roadway tunnels and bridges owned by 

the Department of Transportation, which shall be 

governed by construction and design standards 

approved by the Commonwealth Transportation 

Board. 

6
13 VAC § 5-31-20(A), (B). In regulating amusement devices, 

the Board did, however, adopt specific regulations for such 

activities or offerings as bungee jumping, 13 VAC § 5-31-220, 

et seq., gravity rides, 13 VAC § 5-31-180, concession gokarts, 13 VAC § 5-31-190, inflatable amusement devices, 13 

VAC § 5-31-200, and artificial climbing walls, 13 VAC § 5-31-

210. The “structure,” indeed the method of “conveyance” or 

“movement” of riders, associated with these activities, which 

the Board regulates as “amusement devices,” indicates that 

the Board applied the definition of “amusement devices” 

broadly. 

In this appeal Vuich argues, as she did in the circuit 

court, that the snow tubing ride meets the definition of 

“amusement device” because the ride, taken as a whole, 

involved the construction of the conveyer system that 

transported the riders to the top of the slope, reconstruction 

of the slope to enhance the ride, formation and expansion of 

undulating chute-like lanes, and erection of a blue wall made 

of stadium padding, all of which “conveyed or moved” the 

riders “in an unusual manner for diversion.” 

Great Eastern responds that the snow tubing park is not 

an amusement device under the VADR because it is not a 

“structure.” According to Great Eastern, common usage of the 

term “would suggest that an overlay of snow on a mountainside 

7
is not a structure.” Great Eastern also asserts that the snow 

tubing slope does not convey or move people: “it merely 

provides them with an opportunity to move themselves with the 

help of gravity.” Finally, Great Eastern asserts that the 

identification of “passenger tramway” as a specific type of 

amusement device indicates that the General Assembly intended 

that ski lifts are separate from skiing and therefore the 

means by which a person arrives at the slope is separate from 

the activity on the slope itself. 

We agree with Great Eastern’s contention that the 

identification of passenger tramways as a specific type of 

amusement device by the General Assembly reflects an intent to 

treat and regulate those devices separately from other types 

of amusement devices. Such separation is consistent with the 

fact that when a rider exits a passenger tramway or “ski lift”5

and proceeds to venture down a slope, the provider of the ski 

lift no longer controls the rider’s movement. The rider 

retains the ability to choose his or her route down the slope 

and otherwise control the descent. However, as Great Eastern 

recognizes, the conveyer system used in conjunction with the 

snow tubing ride in this case does not fit within the 

 5

 The Board in adopting the VADR specifically identified 

passenger tramways as including “ski lifts.” See Virginia 

Dep’t of Housing & Community Development, Preface to Virginia 

Amusement Device Regulations (2003 ed. 2005). 

8
definition of “passenger tramway” contained in Code § 36-

98.3(A) and the VADR. That definition requires not only that 

the passenger tramway “transport passengers uphill” but also 

that the tramway be “suspended in the air by the use of steel 

cables, chains or belts, or by ropes, and usually supported by 

trestles or towers with one or more spans.” Code § 36-

98.3(A); 13 VAC § 5-31-20(A). 

We need not decide here, however, whether the conveyor 

system used in conjunction with the snow tubing ride in this 

case should be treated as part of, or separate from, the 

remainder of the ride for purposes of qualifying as an 

amusement device. Considering the facts of this case and the 

Board’s broad application of the definition of “amusement 

device,” we conclude that the snow tubing ride qualifies as an 

amusement device under the VADR independent of the passenger 

conveyor system.

The mountain slope upon which the snow tubing ride is 

located, while providing the platform on which the ride 

occurs, does not do so in its natural, undisturbed state. In 

creating the ride, the slope was considerably reformed through 

extensive movement of earth and formation of chute-like lanes 

necessary to guide the riders down the slope. Furthermore, an 

integral part of the ride was the blue wall made of stadium 

padding constructed at the end of the ride. These elements 

9
satisfy the requirement that an amusement device be a 

structure. 

 The definition of amusement device also requires that 

riders be “conveyed or moved.” Code § 36-98.3(A); 13 VAC § 5-

31-20(A). This language imports a circumstance in which the 

rider is a passive participant and does not exert control over 

his or her direction during the ride. While engaged in the 

snow tubing ride, the rider’s path is guided solely by the 

chute-like lanes and the rider exercises no control over the 

path of his or her descent.6 The snow tube ride therefore is 

one in which the rider is “conveyed or moved” as required by 

the definition. Finally, the movement must be “in an unusual 

manner for diversion.” There can be little disagreement that 

riding an inflated rubber donut-style tube down a slope in a 

chute-like lane is an “unusual manner” of movement and done 

“for diversion.” 

Accordingly, for the reasons stated, we will reverse the 

judgment of the trial court and remand the case for further 

proceedings consistent with this opinion. 

Reversed and remanded. 

 6

 The relative lack of control available to a snow tube 

rider compared to a skier distinguishes landscape architecture 

and other improvements made to a ski slope from those made to 

a snow tube chute. 

10