Present: All the Justices 

PATRICIA STONE HOAR, AS 

GUARDIAN OF THOMAS HOAR 

 OPINION BY 

v. Record No. 972334 CHIEF JUSTICE HARRY L. CARRICO

 November 6, 1998 

GREAT EASTERN RESORT MANAGEMENT, 

INC., t/a MASSANUTTEN SKI RESORT 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Joshua L. Robinson, Judge Designate 

 On January 19, 1992, Thomas Hoar (Thomas) suffered 

disabling brain damage in a skiing accident on a ski trail 

maintained at a ski area near Harrisonburg by Great Eastern 

Resort Management, Inc., t/a Massanutten Ski Resort 

(Massanutten). In a motion for judgment alleging 

negligence on the part of Massanutten, Thomas’s wife and 

guardian, Patricia Stone Hoar (the Guardian), sought 

recovery of damages for Thomas’s injuries. A jury returned 

a verdict in the Guardian’s favor in the amount of 

$6,170,563.00. Upon motion of Massanutten, the trial court 

set the verdict aside and entered judgment in favor of 

Massanutten. We awarded the Guardian this appeal and 

granted Massanutten’s assignments of cross-error. 

 At the outset, Massanutten raises a question 

concerning the standard we should apply in reviewing the 

judgment of the trial court. Massanutten argues that when 

a trial court sets aside a jury verdict, the verdict is not 
entitled to the same weight as one that has been approved 

by the court. Mann v. Hinton, 249 Va. 555, 556-57, 457 

S.E.2d 22, 23 (1995). Massanutten also asserts that the 

jury verdict in this case is entitled to little or no 

weight because it was in the exact amount of Thomas’s 

special damages. When such a verdict is returned, 

Massanutten says, “it bespeaks a compromise . . ., the 

integrity of the jury’s finding on liability is suspect, 

and the . . . finding on liability is impeached.” Ford 

Motor Co. v. Bartholomew, 224 Va. 421, 433-34, 297 S.E.2d 

675, 681-82 (1982). Further, Massanutten maintains, the 

trial court was of opinion there was no evidence to support 

the verdict in any event. Additionally, Massanutten says, 

neither party seeks a new trial. “Under these 

circumstances,” Massanutten concludes, “the standard of 

review should focus on whether there is evidence to support 

the trial court’s action entering judgment for Massanutten 

rather than whether there is evidence to support the jury 

verdict.” 

 However, it is the established rule that “[e]ven 

though the trial court [has] set the verdict aside, we 

[will] state the facts and reasonable inferences to be 

drawn therefrom in the light most favorable to the [party] 

who prevailed before the jury.” Stump v. Doe, 250 Va. 57, 

2
58, 458 S.E.2d 279, 280 (1995). See also Griffett v. Ryan, 

247 Va. 465, 467, 443 S.E.2d 149, 150 (1994). “[A]nd if 

there is any credible evidence in the record that supports 

the verdict, we must reinstate that verdict and enter 

judgment thereon.” Id.

 Stated in the light most favorable to the Guardian, 

the evidence shows that on January 17, 1992, two days 

before Thomas’s accident, Massanutten opened to the public 

a new, more advanced ski trail, known as “Diamond Jim.”1 

This trail was built in a heavily wooded area by a “cut and 

fill” process, which is used when a ski run does not follow 

the natural “fall line” of a hill or mountain. According 

to an expert witness called by the Guardian, “[t]he fall 

line of a hill or a slope is the direction a ball would 

roll if you were to let it go and it rolled slowly [or] the 

direction water would flow if left to itself.” 

 In the cut and fill process, the side of a hill or 

mountain is cut away to form one side of a ski run and the 

excavated soil is used to fill in the opposite side to make 

the run even and to double its width. In the area of 

Diamond Jim where Thomas was injured, the cut and fill 

 

1 Ski trails are marked according to their relative 

difficulty at each ski resort. Green circles indicate the 

trails that are the easiest, blue squares the more 

3
process created a “drop-off,” having a vertical drop of 

some thirty feet, on the left side of the downhill ski run.2 

The bottom of the drop-off contained rocks and logs. The 

drop-off also had a double fall line, meaning that the 

hypothetical ball “wouldn’t go straight down the middle of 

[the ski] run [but] would taper off [to the bottom of the 

drop-off].” The cut and fill process also left a gap 

between the left edge of the ski run and the tree line, 

which bordered the remainder of the run on both sides, 

eliminating a “visual cue to the skier that this is the 

edge of the trail, don’t go over here.”3

 The groomed area of the ski run had a snow depth of 

two feet. The snow surface was “very hard packed” and the 

ground was “extremely hard.” A “berm” of snow, one foot 

higher than the groomed area, ran along the left edge of 

the run and the snow tapered off to a depth of only a few 

inches at the bottom of the drop-off. 

 

difficult, and black diamonds the most difficult at the 

particular ski area. 

2 The drop-off was variously described by the Guardian’s 

witnesses as “very steep,” “a sheer drop-off,” “a 30-foot 

cliff,” and “a hidden drop-off.” A Massanutten witness 

said the grade of the drop-off was “only slightly steeper” 

than the “steeper area . . . on the main run.” 

3 In the area where the tree line is interrupted, there are 

two individual trees just off the edge of the trail, one 25 

inches in circumference and the other 22 inches. 

4
 Prior to Thomas’s accident, Massanutten had ordered 

and received a shipment of bright orange “warning barrier 

fencing” for use on Diamond Jim. At the time of the 

accident, Massanutten had installed fence posts in the area 

where Thomas was injured, but had not yet attached the 

bright orange fencing; the fencing was installed “a couple 

days later.”4 

 As a result of his brain injury, Thomas is incompetent 

and was unable to testify. A friend, George Archer Marston 

(Marston), a civil engineer who accompanied Thomas to the 

Massanutten ski resort on the occasion in question, 

testified as a witness for the Guardian. According to 

Marston’s testimony, he and Thomas, both experienced 

skiers, purchased lift tickets and began skiing about 9:00 

a.m. on January 19, 1992. After warming up on some of the 

easier slopes, they took a chair lift to Diamond Jim. At 

the time, Diamond Jim had been groomed to its left edge, 

permitting skiers to ski all the way to that edge. In 

addition, snowmaking machinery was blowing snow across the 

ski run, blinding skiers using the right side of the run. 

 

4 The jury was instructed that evidence of Massanutten’s 

post-accident erection of a fence on the poles installed 

pre-accident “is not received as evidence that 

[Massanutten] was negligent.” 

5
Also, there were “moguls” in the center of the ski run, but 

none on the edges.5 

 Thomas and Marston skied down the left side of Diamond 

Jim without incident. They then took the chair lift for a 

second trip down Diamond Jim. After skiing about halfway 

down the run, they stopped at a sign marked “slow,” below 

which the slope steepened, and talked for a couple of 

minutes. Thomas decided to ski down the left side of the 

run and, not “going fast,” skied to the left laterally 

across the slope, with Marston following. 

 Marston stated that shortly before Thomas reached the 

edge of the slope, he “caught an edge and lost his 

balance,[6] bent at the knees and kind of sat down on the 

back of his skis and then slid off the edge of the slope 

out of . . . sight.” Marston skied “right up to the edge 

expecting to find [Thomas] adjacent to the slope, maybe six 

to eight feet below the edge of the slope,” but instead 

“found this very steep, large vertical drop.” Thomas was 

lying between two logs at the bottom of the drop, “probably 

laterally a hundred feet away from [Marston and] over 30 

 

5 A witness described a “mogul” as “a mound that is usually 

created by skiers skiing down a steep area and cutting 

small hills into the side of the hill.” 

6

 “Catching an edge” refers to the situation that may result 

when, in making a turn, a skier tilts his skis and the 

6
feet vertically below [him].” Thomas was unconscious and 

bleeding from his nose, mouth, and one ear. 

 Marston also testified that on his first trip down 

Diamond Jim on the morning of January 19, he did not see 

the steep drop-off. Marston stated further that, when he 

went to see what had happened when Thomas slid out of 

sight, he had to ski “right up to the edge[,] . . . 

probably three to five feet from the edge,” before he 

realized the extent of the drop-off. 

 Dr. James Broderson (Dr. Broderson), a dentist who had 

skied at the Massanutten resort many times, was called as a 

witness by Massanutten. He skied down Diamond Jim on the 

morning of January 19, 1992, just ahead of Thomas. Dr. 

Broderson stopped approximately twenty feet downhill from 

the “slow” sign to make sure the course was clear before he 

“head[ed] on down.” He observed Thomas skiing toward the 

left side of the slope, then trying “to initiate a turn to 

the right” but either catching an edge or crossing his 

skis, and falling forward “[o]ut of control.” 

 After Thomas was carried away, Dr. Broderson went to 

the bottom of the drop-off where Thomas had been lying to 

look “for some evidence of how it was that [Thomas] got 

 

uphill edge catches the snow and causes him to lose his 

balance. 

7
hurt.” There, Dr. Broderson found what appeared to be “an 

impact zone with a log.” There was “[e]ither skin” or 

“maybe a little fiber something . . . that looked like he 

had . . . hit . . . there.” 

 Dr. Broderson had seen “numerous tumbles like 

[Thomas’s where] no one had been hurt, so [he] didn’t think 

[Thomas] would be hurt from what [he] saw.” Dr. Broderson 

explained, however, that he had “never been over to that 

edge and looked over.” He thought that the ski “slope 

possibly continued out” and was approximately “level,” that 

“you could probably ski around [the left side] like you did 

on the right side,” where there was “a little easier way to 

go down the slope.” He “didn’t realize there was an 

embankment”; he “knew there was a little drop-off, but 

. . . had no idea it was like what it was there.” 

 Dr. Gregory O’Shanick, a specialist in brain injuries, 

began treating Thomas in June of 1994. Dr. O’Shanick 

testified that the object which produced the injuries 

suffered by Thomas “would have to be something that was 

hard, something that was firm, that was not yielding.” 

 At trial, the Guardian based her case for liability 

solely on the proposition that Massanutten was negligent in 

failing to warn skiers of the existence of the drop-off. 

In setting aside the jury verdict, the trial court, while 

8
approving the jury’s finding in favor of Thomas on 

assumption of risk and contributory negligence, ruled: (1) 

that without expert testimony “as to what was the standard 

of care in the industry,” a lay jury could not “decide what 

would be an unreasonable risk”; (2) that there was no 

evidence to demonstrate that, had a warning been provided, 

it “would . . . have made any difference”; and (3) that 

there was no showing “that it was more probable . . . that 

the injury occurred after [Thomas] went over the bank than 

before.” 

Expert Testimony

 At trial, the Guardian presented the testimony of 

Richard Penniman (Penniman), an expert in skiing safety. 

The Guardian asked Penniman whether he was familiar with 

“the skier’s code of responsibility.” Upon receiving an 

affirmative answer, the Guardian asked Penniman whether 

there was “a written ski operator’s responsibility.” 

Massanutten objected to the question, and the trial court 

responded that “[t]he standard of care in the industry may 

be a relevant matter for the jury to consider,” and allowed 

the Guardian to proceed. Penniman replied that there was 

no operator’s responsibility code. 

 The Guardian then asked Penniman if he had “an opinion 

whether a warning was necessary in the area where Tommy 

9
Hoar went off” the ski slope. Massanutten objected to the 

form of the question, and the trial court sustained the 

objection. The Guardian did not rephrase the question or 

pursue the matter further but made a proffer of the 

testimony Penniman would have given. Nor did the Guardian 

object when Massanutten later produced expert testimony 

concerning whether the Diamond Jim trail was marked 

appropriately. 

 The Guardian now maintains that she “was not required 

to produce expert testimony as to the standard of care of 

ski area operators in the ski industry.” She says that 

“[w]hether a ski area ought to alert skiers to potential 

hazards or obstacles on a ski slope” is a matter “as to 

which [jurors] are as competent to form an opinion as the 

witness.” 

 Massanutten contends, on the other hand, that under 

Burch v. Grace Street Building Corp., 168 Va. 329, 340, 191 

S.E. 672, 677 (1937), the Guardian is estopped from taking 

a position inconsistent with one she assumed previously. 

Massanutten says that having “attempted to create a factual 

issue of the standard of care . . . by trying to elicit 

. . . testimony from [her] expert Penniman” concerning the 

existence of the duty to warn, the Guardian “is not 

10
permitted now to take the inconsistent position that the 

same duty exists as a matter of law.” 

 The Guardian’s present position that expert testimony 

was not required to establish the duty to warn is not 

inconsistent with, but alternative to, her unsuccessful 

attempt to establish the duty through expert testimony. It 

is not unusual in the trial of a case for a litigant to 

find himself blocked in an effort to establish a point in a 

certain manner and then have to resort to a different 

approach to make the point. 

 It is the rule in Virginia that a litigant “may plead 

alternative facts and theories of recovery” and “state as 

many separate claims or defenses as he has regardless of 

consistency.” Rule 1:4(k). See also Code § 8.01-281(A); 

Cooper v. Horn, 248 Va. 417, 423, 448 S.E.2d 403, 406 

(1994). We perceive no reason why the considerations 

supporting this rule should not also support a litigant’s 

shift to an alternative position in a situation like the 

present case.7 

 

7 Massanutten cites Smith v. Settle, 254 Va. 348, 492 S.E.2d 

427 (1997). There, the plaintiffs elicited expert 

testimony to create factual issues of the existence of the 

defendant’s duties and then took the position that the same 

issues were matters of law, suitable for jury instructions. 

Here, the Guardian was unsuccessful in her attempt to 

elicit expert testimony and only then took the position 

11
 Citing Rule 5:25, Massanutten also contends that by 

failing to object to Massanutten’s use of expert testimony 

to describe the standard of care and by trying to elicit 

such testimony herself, the Guardian has failed to preserve 

an objection to Massanutten’s use of expert testimony at 

trial. However, the Guardian is not complaining of 

Massanutten’s use of expert testimony but of the trial 

court’s ruling that she was required to produce expert 

testimony to establish a standard of care. Her assignment 

of error on the point states that the trial court erred in 

setting the verdict aside “on the grounds that expert 

testimony was required to prove whether the drop-off . . . 

posed an unreasonable risk of injury as to which 

[Massanutten] had a duty to warn.” 

 Next, Massanutten argues that “the introduction of 

expert testimony concerning the standard of care with 

respect to ski slope operators’ duty to warn was 

appropriate and, indeed, required in this case.” We 

disagree. 

 In Board of Supervisors v. Lake Services, Inc., 247 

Va. 293, 440 S.E.2d 600 (1994), we said: 

 Expert testimony is inadmissible regarding 

“matters of common knowledge” or subjects “such that 

 

that such testimony was not required. Hence, Smith v. 

Settle is inapposite. 

12
[persons] of ordinary intelligence are capable of 

comprehending them, forming an intelligent opinion 

about them, and drawing their own conclusions 

therefrom.” Thus, when the question presented can be 

resolved by determining what precautions a reasonably 

prudent person would have taken under like 

circumstances, no expert testimony is required or 

permitted. 

 Further, expert testimony is admissible only when 

specialized skill and knowledge are required to 

evaluate the merits of a claim. Issues of this type 

generally arise in cases involving the practice of 

professions requiring advanced, specialized education, 

such as engineering, medicine, and law, or those 

involving trades that focus upon scientific matters, 

such as electricity and blasting, which a jury cannot 

understand without expert assistance. 

Id. at 297, 440 S.E.2d at 602 (citations omitted). 

 Here, the issue, as framed by one of the instructions 

granted below, was whether Massanutten, in the exercise of 

ordinary care, was obligated to warn skiers of an unsafe 

condition that was not open and obvious. This was not a 

complicated or technical issue, and its resolution did not 

require specialized skill or knowledge. Rather, it 

concerned matters of common knowledge that jurors, with the 

application of a reasonable amount of common sense, are as 

competent of understanding and deciding as the expert 

witness. Indeed, as Kenneth Hess (Hess), Massanutten’s 

assistant ski area manager, put it in his testimony: 

“Common sense tells you that you ought to tell people that 

13
there’s a problem on a ski slope that’s not easily 

identifiable.” 

 Finally, by way of cross-error, Massanutten contends 

that the trial court erred in refusing to exclude testimony 

of the Guardian’s expert witness, Penniman, to the effect 

that Massanutten had created “a gap in the cut and fill 

line” and “a recess of the trees [so that the] trees now 

are way, way back away from where the edge of the fill is 

[and] the skier no longer has the visual cue that this is 

the edge of the trail.” 

 Massanutten argues that Penniman’s testimony that “the 

skier no longer has the visual cue” was inadmissible 

because it was based upon an assumption not supported by 

the record, i.e., that “the edge [of the ski trail] was not 

visible.” Massanutten also says that this assumption was 

contradicted by the Guardian’s own witness, Marston, who 

testified that he “could tell where [he] thought the edge 

of the slope was . . . from where [he was] standing at the 

slow sign.” 

 However, Penniman’s testimony concerning “the visual 

cue” was not based upon an unsupported assumption but upon 

his personal observations, made on two visits to the ski 

slope, and from his having “skied at Massanutten . . . 

during [his] investigation of [Thomas’s] accident.” And, 

14
although Marston, the Guardian’s witness, said he could 

tell where he thought the edge was from where he had 

stopped near the “slow” sign, he stated that he did not 

realize “the extent of that drop-off . . . until [he] skied 

right up to the edge” and found “this very steep, large 

vertical drop.” 

 But even if Penniman’s testimony varied from 

Marston’s, it does not follow that Massanutten was entitled 

to have Penniman’s version excluded. Thomas is the real 

party plaintiff in this case, and he did not testify. 

Hence, this situation is not subject to the rule of Massie 

v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922), that a 

litigant’s “statements of fact and the necessary inferences 

therefrom are binding upon him.” Id. at 462, 114 S.E. at 

656. Rather, Thomas is entitled to the benefit of the 

corollary enunciated in Massie v. Firmstone that “when two 

or more witnesses introduced by a party litigant vary in 

their statements of fact, such party has the right to ask 

the court or jury to accept as true the statements most 

favorable to him.” Id.

Primary Negligence 

 Massanutten cites Whitfield v. Cox, 189 Va. 219, 

52 S.E.2d 72 (1949), where we said that “[t]he owner 

or proprietor of a place of [business has the] duty 

15
. . . to exercise reasonable care for [his invitee’s] 

safety and protection — such care as would be 

exercised by an ordinarily careful and prudent person 

in the same position and circumstances.” Id. at 223, 

52 S.E.2d at 73-74. Massanutten then states that 

“[i]n order to prove negligence, [the Guardian] had to 

demonstrate that Massanutten clearly departed from the 

accepted standard of care followed by ordinary, 

prudent ski slope operators of similar slopes.” 

 Massanutten cites testimony by Marston that he 

had “seen trails out West that ‘have probably steeper 

vertical drops than this off the edge, but they are 

always either clearly marked or they are clearly 

visible.’” Massanutten then asserts that, here, “the 

uncontradicted evidence of [the Guardian’s] and 

Massanutten’s witnesses [was] that the day was clear, 

the edge was visible from 100 feet, it created a 

horizon[8], and there was a known drop-off of some 

unknown dimension.” Thus, says Massanutten, “because 

 

8 The significance of Massanutten’s reference to a “horizon” 

is that Marston testified a skier would see a horizon while 

“going from the right side [of the ski slope] over to the 

left side” and that the horizon is “a key giveaway,” 

telling the skier he “can’t continue to see the terrain 

because of the steepness of the slope.” 

16
the condition was ‘clearly visible,’ there was no need 

for . . . [a] warning.” 

 Continuing, Massanutten submits that it is 

irrelevant that “someone else may have marked the 

trail differently.” The issue, Massanutten states, 

“is whether evidence exists to prove that Massanutten 

clearly departed from the accepted standard of care 

followed by ordinary, prudent ski slope operators of 

difficult courses when it did not mark the plainly 

visible edge of a trail beyond which skiers knew they 

should expect conditions they ‘may need to avoid.’” 

Such evidence, Massanutten concludes, “does not 

exist,” and, “[b]ecause there is no conflict of 

evidence on this question, the judgment for 

Massanutten must be affirmed.” 

 However, there was a conflict in the evidence on 

the question whether the “condition” existing “off the 

edge” was plainly visible. As Massanutten stresses, 

Marston, the Guardian’s witness, said he could tell 

where he thought the edge was from where he had 

stopped near the “slow” sign. And Massanutten’s 

expert witness, Larry D. Heywood (Heywood), testified 

it was his opinion “that the edge of the run . . . 

where [Thomas] went off was visible from around 100 

17
feet.” But Dr. Broderson, Massanutten’s witness, who 

also had stopped near the “slow” sign, stated that he 

thought the ski slope possibly “continued out” and was 

approximately “level,” providing an “easier way to go 

down the slope.” And Penniman, the Guardian’s expert 

witness, stated that “the skier no longer has the 

visual cue that this is the edge of the trail.” This 

conflict in the evidence presented a typical issue for 

jury determination. 

 On a similar point, citing an instruction granted 

below, Massanutten points out that an occupant of 

premises has a duty to warn of an unsafe condition 

unless the “condition is open and obvious to a person 

using ordinary care for his own safety.” Massanutten 

repeats what Marston said about seeing the edge from 

where he stopped at the “slow” sign and about a 

horizon being “a key giveaway” that there is “steep 

terrain” beyond it. Massanutten then opines that, 

with this information available, “it is readily 

apparent that ‘a person using ordinary care for his 

own safety’ would have avoided skiing near the edge.” 

 Here again, however, Massanutten is unwilling to 

recognize there was a conflict in the testimony 

relating to whether the condition existing off the 

18
edge of the ski trail was plainly visible, a conflict 

that necessarily encompasses the question whether the 

condition was open and obvious. That question, 

therefore, was also a matter for jury determination.

 Furthermore, there was a direct conflict in the 

evidence resulting from the “battle of the experts” 

over the crucial issue whether Massanutten should have 

given warning of the existence of the drop-off, and 

this conflict alone was sufficient to make a jury 

issue of Massanutten’s negligence. The Guardian’s 

expert witness, Penniman, testified that the “hidden 

drop-off” constituted a “dangerous area” and that, 

according to “the practice and custom in the ski 

industry,” a warning in the form of “a simple bamboo 

and rope fence,” costing about $10, was needed to 

“inform the skier . . . you don’t want to go here.” 

 On the other hand, Massanutten’s expert witness, 

Heywood, testified that “the Diamond Jim run was 

maintained and marked appropriately [in conformity] 

with the custom and practice” of the ski industry and, 

accordingly, that it was not necessary “to put any 

type of marking on [the drop-off].” Heywood further 

opined that, according to custom and practice, marking 

of the drop-off was unnecessary because “skiers are 

19
aware that there are edges to the run” and that “[o]ff 

the edge . . . is a variety of things, trees, stumps, 

rocks, whatever.”9

 Finally, there was a dispute concerning the 

purpose of the bright orange “warning barrier fencing” 

Massanutten had ordered and received but, at the time 

of Thomas’s accident, had not yet attached to the 

already-in-place fence posts in the area of the dropoff. Hess, Massanutten’s assistant ski area manager, 

testified that the purpose of the fencing was “[t]o 

retain snow on the slope.” However, before Diamond 

Jim was opened to the public, a letter written by the 

engineer employed in the construction of Diamond Jim 

to the slope designer on the project stated that 

“[f]encing of the high visibility, portable type will 

need to be installed at various locations to direct 

 

9 Citing Atlantic Rural Exposition, Inc. v. Fagan, 195 Va. 

13, 77 S.E.2d 368 (1953), Massanutten questions the 

propriety of the Guardian’s use of Penniman’s testimony to 

prove the existence of a duty to warn. Massanutten says 

that the testimony “only compared Massanutten with other 

facilities and custom and practice” and that “comparison 

with what others may do is not the question.” See id. at 

25, 77 S.E.2d at 374. However, it should not escape notice 

that Massanutten presented precisely the same character of 

testimony on the same subject through its expert witness, 

Heywood. Hence, Massanutten will not be heard to complain. 

See Hoier v. Noel, 199 Va. 151, 155, 98 S.E.2d 673, 676 

(1957). 

20
the flow of traffic and to indicate possible hazards.” 

(Emphasis added.) 

 Massanutten devotes a vague footnote to this 

subject in which it says that the Guardian 

“juxtapositions” Massanutten’s ordering of the fencing 

with the letter from the construction engineer “to 

infer that Massanutten had planned, but not yet 

erected, warning fencing at the area of the drop-off.” 

Not suprisingly, the Guardian does exactly what 

Massanutten accuses her of. She argues, and we think 

justifiably so, that “[t]he jury was entitled to infer 

from this evidence that Massanutten obtained and used 

this bright orange fencing to warn skiers to maintain 

a safe distance away from dangerous areas, that it 

intended to do so at the drop-off on Diamond Jim, and 

that it was negligent for failing to do so in this 

instance.” 

Causation 

 As noted previously, with respect to the issue of 

causation, the trial court made two rulings. First, the 

court ruled that there was no evidence to demonstrate that, 

had a warning been provided, it “would . . . have made any 

difference.” Second, the court ruled that there was no 

21
showing “that it was more probable . . . that the injury 

occurred after [Thomas] went over the bank than before.” 

 Concerning the trial court’s first ruling, Penniman, 

the Guardian’s expert witness, was asked “[w]hat good” a 

warning would have been to a skier in Thomas’s situation. 

Penniman responded that “a fence or a rope barricade tells 

[skiers] that the ski area doesn’t want them over there 

. . . that it’s hazardous . . . [s]o they behave 

differently”; “[t]hey aren’t as inclined to get close to 

that edge”; they “usually approach it much more 

cautiously”; and if they lose balance, “instead of trying 

to regain their balance . . . they will just fall and let 

themselves come to a stop rather than fight it.” 

 Thomas, of course, was unable, because of his 

disability, to tell the jury whether, had a warning been 

provided, he would have heeded it in the manner suggested 

by Penniman. Nor could anyone have spoken for Thomas. But 

“[f]requently material facts are not proven by direct 

evidence. A verdict may be properly based upon reasonable 

inferences drawn from the facts. If facts are present from 

which proper inferences may be drawn this is sufficient.” 

Northern Virginia Power Co. v. Bailey, 194 Va. 464, 470, 73 

S.E.2d 425, 429 (1952). Here, from the circumstances that 

were proven below, and “[a]ccording to the ordinary 

22
experience of mankind,” the jury was “warranted in the 

conclusion that [Thomas’s] injury would not have occurred 

had [a warning] been given.” Southern Ry. Co. v. Whetzel, 

159 Va. 796, 807, 167 S.E. 427, 430 (1933). See also

Norfolk S. Ry. Co. v. Lassiter, 193 Va. 360, 370, 68 S.E.2d 

641, 647 (1952). 

 Concerning the trial court’s ruling with respect to 

the issue whether Thomas’s injury occurred before or after 

he “went over the bank,” the issue could be disposed of 

easily by reference to an admission made by Massanutten in 

a memorandum supporting its motion to set aside the 

verdict: “Although we know that the injury must have 

occurred after Mr. Hoar fell and went over the edge, there 

is no evidence to show in more detail how or why he hit his 

head so as to cause the brain injury.” (Emphasis added.) 

 Aside from the admission, Dr. Broderson’s testimony 

showed clearly that Thomas’s injury occurred after he “went 

over the bank.” Dr. Broderson was asked: “[W]hen [Thomas] 

fell forward, where was he in relation to the edge of the 

trail?” Dr. Broderson replied that Thomas “was actually 

over — slightly over the embankment from the time he fell.” 

 Furthermore, there is Dr. Broderson’s testimony that 

he found what appeared to be “an impact zone with a log” 

and a substance that was “[e]ither skin” or “maybe a little 

23
fiber something . . . that looked like [Thomas] had . . . 

hit . . . there.” This testimony was sufficient to supply 

the final link in the chain of causation from Massanutten’s 

negligence to Thomas’s injury, permitting the jury to find 

from all the evidence that Thomas sustained his injury by 

striking the log after falling to the bottom of the dropoff and not, as Massanutten hypothesizes, by striking “the 

hard packed snow which he would have struck when he tumbled 

head first at the edge.” 

Assumption of Risk and Contributory Negligence

 By way of cross-error, Massanutten contends that the 

trial court erred in failing to find as a matter of law 

that Thomas assumed the risk of injury and was guilty of 

contributory negligence. With respect to assumption of 

risk, Massanutten engages in a discussion of the theory of 

inherent risks, a theory, as Massanutten acknowledges, 

“Virginia case law has not had an opportunity to develop” 

in skiing cases. The courts of other jurisdictions, 

Massanutten says, have applied the theory and barred 

recovery for ski injuries where “the accident resulted from 

[risks] inherent [in skiing] and not from negligent 

operation of the course.”10

 

10 The out-of-state cases cited by Massanutten are Swenson v. 

Sunday River Skiway Corp., 79 F.3d 204 (1st Cir. 1996) 

24
 However, the jury in this case was instructed 

according to familiar principles that if Thomas “fully 

understood the nature and extent of a known danger, and if 

he voluntarily exposed himself to it, he assumed the risk 

of injuring himself from that danger” and could not recover 

for his injuries. The jury was also instructed that 

Massanutten had the duty of proving the defense of 

assumption of risk by the greater weight of the evidence. 

 Massanutten makes no complaint about these 

instructions. They constitute the law of the case, and 

they do not incorporate the theory of inherent risks. 

Accordingly, we will make our decision guided by the 

principles enunciated in the instructions independent of 

that theory. 

 We agree with the trial court that whether Thomas 

assumed the risk of injury was a matter for the jury to 

determine. Here, again, Massanutten asserts that there was 

no conflict concerning the subject. Yet, there was dispute 

about practically every facet of the evidence relating to 

 

(applying Maine statute, moguls held inherent risk of 

skiing); Connelly v. Mammoth Mt. Ski Area, 45 Cal.Rptr.2d 

855 (Cal.Ct.App. 1995) (colliding with ski lift tower 

inherent risk of sport); O’Donoghue v. Bear Mt. Ski Resort, 

35 Cal.Rptr.2d 467 (Cal.Ct.App. 1994) (knowingly 

encountering off-trail obstacles inherent risk of skiing); 

Atwell v. New York, 645 N.Y.S.2d 658 (N.Y.App.Div. 1996) 

25
whether Thomas fully understood the nature and extent of 

the danger and voluntarily exposed himself to it. The 

standard to be applied in an assumption of the risk case 

“‘is a subjective one, of what the particular plaintiff in 

fact sees, knows, understands and appreciates.’” Amusement 

Slides Corp. v. Lehmann, 217 Va. 815, 818-19, 232 S.E.2d 

803, 805 (1977) (quoting Restatement (Second) of Torts

§ 496D, Comment c (1965)). These were matters peculiarly 

within the province of the jury and properly left to it for 

decision. 

 We take the same view of the question of contributory 

negligence. The standard here is an objective one, whether 

Thomas acted for his own safety as a reasonable person 

would have acted under similar circumstances. See Artrip 

v. E.E. Berry Equip. Co., 240 Va. 354, 358, 397 S.E.2d 821, 

824 (1990). The jury was so instructed. The jury was also 

instructed that Thomas had the right to assume the premises 

were reasonably safe for his visit unless he knew or should 

have known of an unsafe condition or used the premises in a 

manner exceeding the scope of the invitation. Considering 

the conflicting evidence in this case in light of these 

principles, we think reasonable minds could differ on the 

 

(applying statute making berm at edge of trail inherent 

danger of skiing). 

26
question whether Thomas acted for his own safety as a 

reasonable person would have acted. Hence, the trial court 

did not err in submitting the question to the jury. 

For the reasons assigned, we will reverse the judgment 

of the trial court, reinstate the jury verdict, and enter 

final judgment thereon in favor of the Guardian. 

Reversed and final judgment. 

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