(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
PATRICK BRETT, ET AL. V. GREAT AMERICAN RECREATION, INC., ET AL. (A-51-95)
Argued November 28, 1995 -- Decided June 13, 1996
STEIN, J., writing for a unanimous Court.
This appeal addresses the scope and proper application of the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -11 (Ski Statute).
Patrick Brett, Karen Furman, Donald Pisarcik, Megan Russell, and Elisa Ramundo (plaintiffs) sued
Great American Recreation, Inc., among others, for compensation for serious injuries they sustained in an
accident while tobogganing on a snow-covered hill that was part of a ski resort operated by Great American.
The accident occurred on the Bunny Buster Trail, after the resort had closed. In the late evening, the lights
on the trail had been illuminated to enable Great American employees to prepare the trail for the next day's
skiers. Plaintiffs, and others in their group, decided to toboggan down that trail. With plaintiffs on board,
the toboggan travelled over a flattened snow fence, over the edge of a twenty-foot dirt embankment onto a
parking lot below. One of the six who were on the toboggan fell off before it dropped to the edge, thereby
escaping injury. Plaintiffs were propelled off the embankment, onto the parking lot, and into a utility pole.
The Ski Statute sets forth certain duties for ski-resort "operators" and for "skiers" as those terms are
defined in the statute. Operators must post signs or otherwise distribute information on the difficulty and
condition of the ski trails and must remove, as soon as practical, "obvious, man-made" hazards. Skiers,
defined in some circumstances to include tobogganers, must know the limits of their abilities, ski under
control, and ski only on designated trails. The statute also provides that skiers assume risks inherent in their
sport.
Plaintiffs sued Great American, the landowner, and others. Except for Great American, all other
defendants were either dismissed from the case or had settled prior to trial. Great American moved for
involuntary dismissal at the close of the plaintiffs' case. In support of that motion, Great American argued
that the Ski Statute applied to plaintiffs' claims; that plaintiffs were skiers as defined by the statute; that
plaintiffs had an obligation to know the limits of their abilities and to maintain control over their course and
speed; and that plaintiffs assumed the risk of the hazard they encountered. Great American also contended
that plaintiffs were trespassers and that its common-law duty to plaintiffs was merely to refrain from willfully
injurious acts. Great American argued that it owed plaintiffs none of the statutory duties of operators, and
that, pursuant to the common-law standard of trespass, plaintiffs were precluded from bringing suit.
Plaintiffs did not contest that the Ski Statute applied, and the trial court held that it governed the
case. The trial court denied Great American's motion to dismiss, finding that if the Legislature had intended
to exclude trespassers from the reach of the Ski Statute, it would have done so expressly. The court also
held that the record was sufficient to create a jury question of whether plaintiffs were invitees; however, even
if plaintiffs were not invitees, the jury could find that they were persons to whom Great American owed a
duty under the statute. Turning to the scope of the operator's duty, the trial court found that the statutory
obligation to remove obvious, man-made hazards can include a duty to eliminate or lessen the danger. The
court held that a reasonable jury could find that the configuration of the Bunny Buster slope could constitute
an obvious, man-made hazard. A similar motion made at the close of all evidence was also denied.
In formulating the jury instruction, the trial court noted that there was agreement that, for the purposes of the Ski Statute, plaintiffs were to be regarded as skiers and that Great American was an
operator. The court charged the statutory duties, including assumption of risk, and informed the jury that it
could consider the expert testimony to determine whether a hazard existed. The court also instructed the
jury that the Ski Statute displaced the common-law standard of care and that it could apportion the verdict
by any comparative negligence of plaintiffs. The jury found plaintiffs 22" negligent, Great American 54" negligent, and the landowner 24" negligent, and awarded damages to all plaintiffs in the amount of
$2,475,000.
On appeal, Great American renewed its argument that the Ski Statute should be integrated with the
common law of premises liability to limit its duty to plaintiffs to a standard less burdensome than the
common law standard for trespassers. For the first time, Great American made the alternative claim that
the Ski Statute should not have been applied to these facts because the ski area was closed when the accident
occurred, and because the statutory definitions of "operator" and "skiers" apply only if the skier pays to ski.
Under either theory, Great American claimed that it was entitled to a jury instruction charging it with no
greater duty than that imposed by the common law with respect trespassers, and that failure to so charge was
reversible error. The Appellate Division rejected these arguments, agreeing with the trial court that the Ski
Statute applied; approving the trial court's interpretation of the various duties the statute imposed; affirming
the trial court's implicit holding that the design of the slope could have constituted an obvious, man-made
hazard; and noting that a simple warning of the dangers of tobogganing could have constituted removal of
that hazard. The Appellate Division also rejected Great American's argument that, as trespassers, plaintiffs
would have been barred from recovery under the common law. The court concluded that if the risk of injury
was foreseeable, Great American owed plaintiffs a non-delegable duty of care.
The Supreme Court granted certification.
HELD: The Ski Statute, N.J.S.A. 5:13-1 to -11, does not apply in this case. However, Great American
Recreation, Inc. is barred by the doctrine of invited error from contesting the application of that
statute to this case. Having been persuaded to apply the Ski Statute, the trial court and the
Appellate Division correctly interpreted its provisions. The jury charge was appropriate and the
record provides ample support for the jury's findings.
1. The Ski Statute codifies the respective duties and liabilities of skiers and resort operators. Both the
duties imposed and the underlying public policy make clear that the Ski Statute's codification of rights and
remedies applies only between parties defined as skiers or ski-area operators. The Legislature intended to
limit the class of operators, and thus the reach of the law, to persons in the business of providing a place to
engage in certain types of winter sports, and defined their duties and responsibilities only in relation to
persons who engage in those sports and pay for the privilege to do so. The Legislature did not intend to
pose a statutory duty on operators to post trail signs or remove hazards for sports foreign to the operator's
business purpose. (pp. 13-18)
2. The Legislature incorporated the concept of foreseeability by specifying that an operator's duty extends to
obvious, man-made hazards; operators have no duty with regard to inherent risks of skiing. If skiers, in the
course of breaching their statutory duty to ski in control, are injured by a hazard that is not inherent and
which the operator had a duty to remove, the comparative negligence statute controls and the relative fault
of the parties will be apportioned. Furthermore, where the Ski Statute properly applies, the Legislature
intended completely to displace the common law. (pp. 19-24)
3. Great American does not operate a tobogganing resort nor does it accept money from persons who wish to toboggan on its premises. Moreover, plaintiffs did not pay to toboggan. Thus, the Ski Statute does not apply because, according to the terms of the statute, Great American was not an operator as to plaintiffs and plaintiffs were not skiers in respect of Great American. Thus, the Ski Statute does not apply. Nevertheless, Great American is barred by the doctrine of invited error from contesting that issue. The doctrine of invited error precludes a disappointed litigant from arguing on appeal that an adverse decision below was the
product of error when that party urged the lower court to adopt the proposition that it now alleges to be
error. (pp. 24-28)
4. Having been persuaded to apply the Ski Statute, the trial court and the Appellate Division correctly
interpreted its provisions and, accordingly, the judgment below must be upheld. The jury charge correctly
directed the discretion of the jury and the record provides ample support for its findings. The jury had
ample grounds to find that the hazard was not inherent. The jury could have properly weighed all of the
relevant factors to find that there was an obvious man-made hazard that Great American could have
removed but did not. Furthermore, it cannot be reasonably contested that plaintiffs breached their statutory
duties to maintain control and not attempt a slope that was beyond their abilities. Based on the record
presented, the jury's verdict was reasonable. (pp. 28-31)
5. The doctrine of invited error would not be applied if it would result in a fundamental miscarriage of
justice. However, this issue need not be addressed because the verdict would have been the same had the
common law been charged. The common-law duty Great American owed to plaintiffs would, at a minimum,
have encompassed a duty to remove obvious, man-made hazards as soon as practicable. The duty owed to
plaintiffs, the obviousness to defendant of the danger, and plaintiffs ability to perceive the risks to themselves
would have been considered by the jury in deciding whether the slope constituted a dangerous hazard. Any
prejudice to Great American occurring by virtue of the trial court's application of the Ski Statute with Great
American's acquiesce was insufficient to require a reversal. (pp. 31-35)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
51 September Term 1995
PATRICK BRETT and ELISA RAMUNDO,
Plaintiffs-Respondents,
v.
GREAT AMERICAN RECREATION, INC.,
Defendant-Appellant,
and
STONEHILL PROPERTY OWNERS
ASSOCIATION, INC., and HOTEL
SECTION CONDOMINIUM COUNCIL, INC.,
Defendants and Third-Party
Plaintiffs,
and
RUDOLPH MAURIZZI,
Defendant and Third-Party
Plaintiff-Respondent,
v.
DENISE McDADE and NANCY MORGAN,
Third-Party Defendants.
___________________________________
KAREN FURMAN,
Plaintiff-Respondent,
v.
GREAT AMERICAN RECREATION, INC.,
Defendant-Appellant,
and
STONE HILL PROPERTY OWNERS
ASSOCIATION, INC., and HOTEL
SECTION CONDOMINIUM COUNCIL, INC.,
Defendants and Third-Party
Plaintiffs,
v.
RUDOLPH MAURIZZI,
Third-Party Defendant- Respondent.
___________________________________
DONALD PISARCIK,
Plaintiff-Respondent,
v.
GREAT AMERICAN RECREATION, INC.,
Defendant-Appellant,
and
STONE HILL PROPERTY OWNERS
ASSOCIATION, INC., and HOTEL
SECTION CONDOMINIUM COUNCIL, INC.,
Defendants,
and
RUDOLPH MAURIZZI,
Defendant-Respondent.
___________________________________
MEGAN RUSSELL,
Plaintiff-Respondent,
v.
GREAT AMERICAN RECREATION, INC.,
Defendant-Appellant,
and
STONE HILL PROPERTY OWNERS
ASSOCIATION, INC., and HOTEL
SECTION CONDOMINIUM COUNCIL, INC.,
Defendants and Third-Party
Plaintiffs,
and
RUDOLPH MAURIZZI,
Third-Party Defendant- Respondent,
and
LISA CARMELITANO and KAREN FURMAN,
Third-Party Defendants.
Argued November 28, 1995 -- Decided June 13, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
279 N.J. Super. 306 (1995).
George C. Jones argued the cause for
appellant (Ribis, Graham & Curtin and Samuel
A. DeGonge, attorneys; Mr. DeGonge and Jerome
J. Graham, Jr., of counsel).
Philip G. Auerbach argued the cause for
respondents Patrick Brett, Elisa Ramundo,
Karen Furman and Donald Pisarcik.
John P. Doran argued the cause for respondent
Megan Russell.
Jared E. Stolz argued the cause for
respondent Rudolph S. Maurizzi (Methfessel &
Werbel, attorneys).
The opinion of the Court was delivered by
STEIN, J.
This appeal requires us to consider the scope and proper
application of the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -11
(Ski Statute). Plaintiffs sued for compensation for injuries
they sustained in an accident while tobogganing on a snow-covered
hill that was part of a ski resort operated by defendant. The
trial court instructed the jury to apply the Ski Statute, and the
jury returned a verdict for plaintiffs. The Appellate Division
affirmed,
279 N.J. Super. 306 (1995), concluding that the Ski
Statute governed and that it was correctly interpreted by the
trial court. We granted certification.
141 N.J. 97 (1995).
Plaintiffs, Patrick Brett, Karen Furman, Donald Pisarcik, Megan Russell, and Elisa Ramundo, were five of a larger group of college friends, then twenty and twenty-one years old, who had travelled to Vernon Township to spend a winter weekend at a condominium there. The condominium belonged to defendant Rudolph Maurizzi, an uncle of one of the group. It is one of a number of condominiums built along the slope of Great Gorge North on either side of a vacant strip of hillside about a thousand feet long. During the winter, the vacant strip is a ski trail known as the Bunny Buster. The trail is part of the ski resort operated by defendant Great American Recreation, Inc. (Great American). Great American operates the trail pursuant to an easement from
defendants Stonehill Property Owners Association, Inc. and Hotel
Section Condominium Council, Inc. (Stonehill), who own the land.
Members of the group arrived on Friday at different times.
Furman, and third-party defendants Denise McDade and Lisa
Carmelitano (Maurizzi's niece) arrived early, and spent part of
the day skiing at the resort. As the afternoon advanced, the
trails were illuminated by artificial lights. When the resort
closed for the night, those lights were turned off. The skiers
returned to the condominium over the ski trails, crossing the
Bunny Buster trail in the dark.
Earlier that day, another member of the group had discovered
a plastic toboggan that Maurizzi stored in his condominium with
other snow equipment. By evening, all the members of the party
had arrived. Between ten and eleven o'clock that night, someone
noticed that the lights on the Bunny Buster trail had been turned
back on. Great American had illuminated the trail to enable its
employees to groom it for the next day's skiers. Observing the
lighted slope, the group decided to use Maurizzi's toboggan on
the trail. There was testimony at trial that other people were
also present and using the trail for sledding or tobogganing.
Maurizzi's toboggan could hold no more than six people, so
members of the group took turns riding it. The first two runs
were uneventful.
The third run, with six on board, was a disaster. Starting
from a point a bit higher than where the first two runs had
begun, the toboggan slid down the trail, across a fifty to
sixty-foot flat expanse of snow at the base of the trail, over a
flattened snow fence, and then over the edge of a twenty-foot
dirt embankment to a parking lot below. One of the six fell off
the toboggan before it dropped over the edge, thereby escaping
injury. The other five, plaintiffs, were propelled off the
embankment, into the parking lot, and into a utility pole located
there.
All were evacuated by ambulance to a hospital with grave
injuries. According to plaintiffs' testimony, Furman suffered a
head injury that required brain surgery, and led to partial
paralysis, cognitive disabilities, and impaired speech. She also
broke her leg and eight ribs, and one of her lungs was punctured.
Russell required extensive, reconstructive facial surgery; she
also suffered back injuries, and has lost the use of her right
eye. Ramundo's back was broken and she was in a body cast for
six months. Pisarcik sustained fractures of the skull, facial
bones, and clavicle, and both lungs were collapsed. Brett's jaw
was broken and he required back surgery. The record indicates
that Russell and Furman bear some facial disfigurement. None of
the plaintiffs have been able fully to return to the physical
activities they enjoyed before the accident.
There was evidence that, at the time of plaintiffs' rescue
by emergency medical personnel, other tobogganers not associated
with plaintiffs' group escaped injury by tumbling off their
toboggan just before it dropped over the edge of the embankment.
A security guard employed by Stonehill testified that in the past
he had seen children sleighriding on the hill. In addition, he
had ordered sleighriders off the Bunny Buster hill on three or
four occasions when the ski area was closed. Removing
sleighriders or tobogganers from the hill was not, however, a
high priority for the Stonehill security team. The security
guard testified that he had other duties on the night of the
accident.
Plaintiffs filed suit against Great American and Stonehill.
Maurizzi and Carmelitano were named as third-party defendants and
then joined as defendants by plaintiffs. McDade and another
member of the party, Nancy Morgan, were also named as third-party
defendants. Stonehill settled with plaintiffs before trial. The
individual defendants and third-party defendants, including
Maurizzi, were dismissed from the case on their motions for
summary judgment. Those dismissals were affirmed by the
Appellate Division and are not challenged before us.
The proper interpretation of the Ski Statute is critical to
our disposition of this appeal. In general, the Ski Statute sets
forth certain duties for ski-resort "operators" and for "skiers"
as those terms are defined in the statute. Operators must post
signs or otherwise distribute information on the difficulty and
condition of the ski trails and "[r]emove as soon as practicable
obvious, man-made hazards." N.J.S.A. 5:13-3(a)(1) to -3(a)(3).
Skiers, defined in some circumstances to include tobogganers,
must know the limits of their abilities, ski under control, and
ski only on designated trails. N.J.S.A. 5:13-4(c) to -4(g). The
statute also provides that skiers assume risks inherent in their
sport. N.J.S.A. 5:13-5.
Great American moved for involuntary dismissal at the close
of plaintiffs' case, see R. 4:37-2, and for judgment at the close
of all the evidence. see R. 4:40-1. In support of its motion
for dismissal, Great American argued that the Ski Statute applied
to plaintiffs' claims. Defendant maintained that plaintiffs were
skiers as defined by the statute and, accordingly, had an
obligation to know the limits of their abilities and to maintain
control of their course and speed, and that they assumed the risk
of the hazard they encountered. In addition to being skiers,
defendant contended that plaintiffs were also trespassers and
that its common-law duty to plaintiffs was merely to refrain from
willfully injurious acts. As a result, Great American argued, it
owed plaintiffs none of the statutory duties of operators, and
plaintiffs were "totally barred" from bringing suit. In effect,
Great American's position called for an integration of the common
law of premises liability with the duties codified by the Ski
Statute, with the result that plaintiffs bore all of the
statutory obligations of skiers, but could not benefit from any
of the statutory obligations of operators because of their status
as trespassers.
Plaintiffs did not contest that the statute applied, and the
trial court held that it governed the case. However, the court
did not accept defendant's argument that the operator owed
plaintiffs none of the statutory duties, finding that if the
Legislature had intended to exclude trespassers from the reach of
the Ski Statute it would have done so expressly. The court held
further that the record was sufficient to create a jury question
whether plaintiffs were invitees, given the lighting on the slope
and the possibility that defendant might be charged with
knowledge that people would use the slope to toboggan. Even if
plaintiffs were not invitees, however, the court held that the
jury could find that plaintiffs were persons to whom defendant
owed a duty under the statute. Turning to the scope of the
operator's duty, the trial court found that the statutory
obligation to remove obvious, man-made hazards should be
understood in its general sense as including a duty to eliminate
or lessen a danger rather than including only a duty to
physically remove the hazardous object. The trial court held
that a reasonable jury could find that the configuration of the
Bunny Buster, with the slope on one side of the snow fence, and
the embankment, parking lot, and telephone pole on the other,
constituted an obvious, man-made hazard.
Accordingly, the motion to dismiss was denied. Another,
substantially similar motion was denied at the close of trial.
In formulating the jury instruction, the trial court noted that
there was agreement that for the purposes of the Ski Statute
plaintiffs were to be regarded as skiers and that defendant was
an operator. The court granted defendant's requests to charge
the statutory duties, including assumption of risk, and agreed
that the jury could consider the expert testimony to determine
whether a hazard existed. The trial court also agreed with
defendant that the Ski Statute displaced the common-law standard
of care, and that a finding that either party had breached its
statutory duties was the equivalent of a finding of negligence.
The only major issue on which defendant did not prevail was its
request to charge the jury that if it determined that plaintiffs
were trespassers, defendant's duty under the Ski Statute would be
reduced.
Accordingly, the court charged the jury:
[T]he first question you will have to
consider and answer is whether the place
where . . . plaintiffs were injured was an
obvious man[-]made hazard.
. . . [Y]ou can find if you feel that
this is correct, that those areas included an
embankment, a level area which was a driveway
or a road or a parking area, and a . . .
utility pole at the foot of the embankment.
The trial court charged that the meaning of the expression
"obvious, man-made hazard" should be determined by ordinary
usage, adding only that "among the definitions of obvious in
ordinary usage is something that . . . is easily discovered,
easily seen, easily understood, is something that is plain,
patent, apparent, evident, clear, or manifest, or something that
is readily perceived by the eye or the intellect," and that the
jury should consider the expert testimony in determining whether
such a hazard existed. Turning to the operator's duty to remove
such hazards, the court instructed:
You should consider the use of the word
"remove" in its ordinary and customary
meaning. Now without intending to limit you
. . . I can indicate to you that it would be
proper for you to consider that remove means
not only to physically uproot, take to a
different position, it also can mean to
eliminate or reduce or obviate.
The jury was also instructed that plaintiffs were skiers under
the Ski Statute and that they could be found negligent in
contributing to their injuries if they breached one of their
statutory duties to toboggan in control and within their
abilities.
The jury found plaintiffs as a group, Great American, and
Stonehill to be negligent. The jury apportioned the negligence
as follows: plaintiffs 22%, Great American 54%, and Stonehill
24%. The jury awarded damages to all plaintiffs in the amount of
$2,475,000.
Before the Appellate Division, Great American renewed its
argument that the Ski Statute should be integrated with the
common law to limit its duty to plaintiffs to a standard even
less burdensome than that which the common law would impose with
regard to trespassers. In the alternative, and apparently for
the first time, defendant claimed that the Ski Statute should not
have been applied at all to these facts, because the ski area was
closed when the accident occurred, and because the statutory
definitions of "operator" and "skier" apply only if the skier
pays to ski. Under either theory, Great American claimed that it
was entitled to a jury instruction charging it with no greater
duty than that imposed by the common law with respect to
trespassers, and that failure to so charge was reversible error.
The Appellate Division rejected defendant's arguments.
279 N.J. Super. 306 (1995). It agreed with the trial court that the
Ski Statute applied and approved that court's interpretation of
the various duties the statute imposed. The panel affirmed the
trial court's implicit holding that the design of the slope could
have constituted an "obvious, man-made hazard," and noted that a
simple warning of the dangers of tobogganing could have
constituted "removal" of the hazard. Id. at 317. The court
rejected Great American's argument that, as trespassers, the
plaintiffs would have been barred from recovery under the common
law. The court held that if plaintiffs' presence was foreseeable
and the risk of injury was great, defendant owed them a non-delegable duty of care. Id. at 317-18.
Before this Court, defendant asserts that the Appellate
Division's interpretation of an operator's duties under the Ski
Statute was overbroad and in conflict with the legislative intent
and the public policy underlying the law. Defendant argues that
the Legislature intended to circumscribe the duties of ski-resort
operators in order to prevent "runaway liability" resulting from
the application of comparative negligence principles to the sport
of skiing. Great American also asserts that the policy of this
State is to limit litigation arising from recreational
activities. Based on those principles, defendant contends that
the duty to "remove" obvious man-made hazards should be construed
narrowly, and not, as did both courts below, to include a duty to
reduce or obviate a hazard by, for example, providing warnings.
Nor, it is argued, do "hazards" properly include permanent
features such as utility poles or the design of the slope. Great
American also renews its argument that the Ski Statute should not
have been applied to this case, because it was not an operator
for sports such as tobogganing that are foreign to its business
purpose and for which it receives no consideration.
In 1979, the Legislature enacted the Ski Statute, L. 1979, c. 29 (codified at N.J.S.A. 5:13-1 to -11), in response to the Vermont Supreme Court's decision in Sunday v. Stratton Corp., 390 A.2d 398 (Vt. 1978). Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to Assembly, No. 1650 (Nov. 20, 1978) (hereinafter Committee Statement). In Sunday, the court held that the common-law doctrine of assumption of risk would no longer serve as a complete bar to skiers who seek to recover from ski-resort operators for injuries caused by hazardous trail conditions. 390 A. 2d at 402. Before the Sunday decision, the law was exemplified by Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp. 786 (D. Vt. 1951), which held that "[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary." Id. at 791.
The Sunday ruling uniformly was interpreted as broadening the potential liability of ski resorts. The ski industry alerted state legislators to the implications of that holding on ski-area operators' liability insurance premiums and on the economics of their industry as a whole. See Kent Feuerhelm et al., "From Wright to Sunday and Beyond: Is the Law Keeping Up with the Skiers?," 1 985 Utah L. Rev. 885, 891 & n.31. New Jersey was not alone in legislating in the wake of the Sunday decision. Some states restored the assumption-of-risk bar by creating an exception to their comparative negligence statutes. 42 Pa. Cons. Stat. Ann. § 7102(c); Vt. Stat. Ann. tit. 12, § 1037; see 1 977 Vt. Laws 119 (statement of legislative intent); Wyo. Stat. §§ 1-1-121 to -123. Other state legislatures, including our own, did not adopt so absolute an approach, choosing instead to codify the respective duties and liabilities of skiers and resort operators and to attempt to identify the inherent risks of skiing by listing examples of risks that the skier assumes or that the resort operator has no duty to correct. See, e.g., Alaska Stat. §§ 05.45.010 to .210; Colo. Rev. Stat. §§ 33-44-101 to -114; Conn. Gen. Stat. §§ 29-211 to -214; Idaho Code §§ 6-1101 to -1109; Me. Rev. Stat. Ann. tit. 26, § 488; Mass. Gen. L. ch. 143, §§ 71I, 71N to 71O; Mich. Comp. Laws Ann. §§ 408.321 to 408.344; Mont. Code. Ann. §§ 23-2-731 to -736; Nev. Rev. Stat. §§ 455A.010 to .190; N.H. Rev. Stat. Ann. §§ 225-A:1 to -A:26; N.J.S.A. 5:13-1 to -11; N.M. Stat. Ann. §§ 24-15-1 to -14; N.Y. Lab. Law §§ 866 to 867; N.C. Gen. Stat. §§ 99C-1 to -5; N.D. Cent. Code §§
53-09-01 to -11; Ohio Rev. Code Ann. §§ 4169.01 to .99; Or. Rev.
Stat. §§ 30.970 to .990; 42; R.I. Gen. Laws §§ 41-8-1 to -4;
Tenn. Code Ann. §§ 68-114-101 to -107; Utah Code Ann. §§ 78-27-51
to -54; Wash. Rev. Code §§ 70.117.010 to .040; W. Va. Code §§ 20-3A-1 to -8. Many state statutes impose specific duties on the
operator, typically including a duty to post signs or remove non-inherent hazards. Thus, the majority of states provide a basic
code of conduct for skiers and operators, often combined with a
legislatively prescribed enumeration of risks assumed by skiers.
Our Legislature stated that its purpose was
to make explicit a policy of this State which
clearly defines the responsibility of ski
area operators and skiers, recognizing that
the sport of skiing and other ski area
activities involve risks which must be borne
by those who engage in such activities and
which are essentially impractical or
impossible for the ski area operator to
eliminate. It is, therefore, the purpose of
this act to state those risks which the skier
voluntarily assumes for which there can be no
recovery.
Both the duties imposed and the underlying public policy make clear that the Ski Statute's codification of rights and remedies applies only between parties defined as skiers or ski-area operators. N.J.S.A. 5:13-2(c) provides that a skier is "a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds or similar vehicles, and including anyone accompanying the person. Skier also includes any person in such ski area who is an invitee, whether or not said person pays consideration."
In contrast, the majority of states limit their statutes to
those who practice the sport of skiing. A few, however, have
broader application. See Alaska Stat. § 05.45.200(8) (including
tobogganers and anyone "using any of the facilities of a ski
area, including ski slopes and trails"); Colo. Rev. Stat. § 33-44-103(8) (including anyone using ski area for purpose of sliding
downhill on snow or ice on, among other things, a toboggan "or
any other device" or using any facility of ski area including ski
slopes and trails); Me. Rev. Stat. Ann. tit. 26, § 488(1)(B)
(similar); Mont. Code. Ann. § 23-2-732(2) (including "any person
admitted to a ski area or using the ski trails, areas, and other
improvements"); N.H. Rev. Stat. Ann. § 225-A:2(II) (including any
person "utilizing the ski slopes, trails, jumps or other areas"
within ski area).
Comparison with other statutes suggests that our Legislature
intended to reach a broader class of persons than those states
that regulate only persons who ski, but less encompassing than
those that bring virtually anyone who ventures within the ski
area under their assumption-of-inherent-risk regime. Our statute
provides:
"Operator" means a person or entity who owns,
manages, controls or directs the operation of
an area where individuals come to ski,
whether alpine, touring or otherwise, or
operate skimobiles, toboggans, sleds or
similar vehicles and pay money or tender
other valuable consideration for the
privilege of participating in said activities
. . . .
Other ski statutes generally do not define a ski-area operator on
the basis of whether persons pay consideration to use the ski
area. Our Legislature apparently intended to limit the class of
operators, and thus the reach of the law, to persons in the
business of providing a place to engage in one of the prescribed
types of winter sports, and defined their duties and
responsibilities only in relation to persons who engage in those
sports and pay for the privilege of doing so. Indeed, the
statutory duties of ski-area operators apparently would be
irrelevant to persons who use portions of the ski area for
activities such as hiking or rock climbing. Nor may such persons
be said to assume risks, inherent or otherwise, greater than
those assumed by any other member of the public. The clear
implication is that an entity is an operator with respect to
persons who practice a particular winter sport only when the
entity accepts a consideration for providing a location for that
specific sporting activity. (We need not resolve the statute's
application to a person who evades payment of the required fee
but practices the specific sport for which the entity ordinarily
receives compensation.)
That interpretation of the Ski Statute obviously applies as
well to persons engaging in one of the winter sports listed in
the statute even though it is not one of the sports for which the
operator accepts a consideration. A business that charges a fee
to use its cross-country ski trails is an operator with regard to
cross-country skiers, but it is not an operator to others who may
drive on its premises on motorized skimobiles, skate on its
frozen lakes, or even slide down its hills on toboggans. In our
view, the Legislature did not intend to impose a statutory duty
on operators to post trail signs or remove hazards for sports
foreign to the operator's business purpose. Similarly, no
special assumption-of-risk immunity was provided to protect
operators from suits filed by persons engaging in sports for
which the operator receives no payment. Thus, if an operator
accepts consideration only for downhill skiing, then only
downhill skiers are "skiers" under the statute.
We recognize that the Ski Statute also provides that the
term "skier" includes "any person in such ski area who is an
invitee, whether or not said person pays consideration."
N.J.S.A. 5:13-2(c). However, apart from that exception, New
Jersey expressly limits the class of persons whose relationship
is controlled by the Ski Statute to the "skier" who is on the
land of another to practice a winter sport, and the "operator"
who accepts payment for the privilege of practicing the sport in
question. To hold that the Ski Statute governs the relationship
between an operator of an area devoted to one sport, and a non-paying, non-invitee who practices a different sport, would
frustrate that legislative scheme.
With regard to its substantive aspects, New Jersey's Ski Statute is consistent with the general pattern of ski statutes elsewhere. Both skiers and operators are assigned specific duties. Chief among the duties assigned to skiers is that "[e]very skier shall maintain control of his speed and course at all times." N.J.S.A. 5:13-4(c). Furthermore, "[a] skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier's ability to negotiate." N.J.S.A. 5:13-4(d).
N.J.S.A. 5:13-5 is captioned "Assumption of risk of skier":
A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.
The Ski Statute's list of inherent risks is illustrative, not exhaustive. In the skiing context, an inherent risk is one that cannot be removed through the exercise of due care if the sport is to be enjoyed. See Schmitz v. Cannonsburg Skiing Corp., 428 N.W.2d 742, 744 (Mich. Ct. App. 1988) (noting that if inherent dangers do not exist, "there is no skiing"). As the
statement of legislative purpose indicates, the concept is
intended to include those dangers that are "essentially
impractical or impossible for the ski area operator to
eliminate." N.J.S.A. 5:13-1(b). Although the Ski Statute
provides that a skier's assumption of inherent risks raises a bar
to suit for injuries that result from them, the general law of
negligence has long recognized that a defendant has no duty with
regard to such risks. See Meistrich v. Casino Arena Attractions,
Inc.,
31 N.J. 44, 49 (1959) (noting that assumption of inherent
risk "is an alternate expression for the proposition that
defendant was not negligent").
In contrast to their duties to post signs and warn of trail
conditions, the operators' duty to remove "obvious, man-made
hazards" is couched in general terms. It is apparent that
obviousness must be considered from the perspective of operators,
because it is on them that the duty is placed. Significantly,
the reference to "obvious" hazards places a broader obligation on
operators than would be the case if they were responsible only
for hazards of which they had actual knowledge. Clearly, an
operator should know of obvious hazards on its mountain. Thus,
there is an element of constructive notice in the Legislature's
formulation of the operator's duty. The statute provides in the
same section that
[n]o operator shall be liable to any skier
unless said operator has knowledge of the
failure to comply with the duty imposed by
this section or unless said operator should
have reasonably known of such condition and
having such knowledge has had a reasonable
time in which to correct [it].
The duty to remove man-made hazards also casts a wide net. It excludes hazards that occur naturally on the mountain, that may be considered inherent to outdoor mountain sports and indeed form an integral part of their allure. Nonetheless, "[by] its nature, an alpine ski area is not a purely unaltered wilderness." Arthur N. Frakt & Janna S. Rankin, "Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability," 28 Idaho L. Rev. 227, 244 (1992). The placement of ski-lift towers, the use of artificial snow, and the layout of the trails all are man-made contributions to the skiing environment. Thus, for example, a jury could reasonably find that a tree left standing in the middle of a blind corner on a steep trail was an "obvious, man-made hazard," but that a tree was an inherent risk when it stood at the edge of a broad and straight fairway. We find that by restricting the duty of operators to man-made hazards, the Legislature has in large part simply restated the proposition that operators have no duty with regard to inherent risks of skiing.
The further limitation on the duty of operators, that obvious, man-made hazards need only be removed "as soon as practicable," confirms the conclusion that section 5:13-3(a)(3) is aimed at non-inherent hazards. Some man-made features of a
ski slope are as inherent to the sport of skiing as the steepness
of the mountain itself. One cannot have skiing without, for
example, towers to support the ski lift. A danger that may
feasibly be removed, however, is not an inherent danger. A jury
might properly find that a ski-lift tower placed where skiers
might be expected to crash into it is a non-inherent, man-made
risk if it could have been placed in a safer location.
Such examples could be considered matters of ski-slope
design, and some courts have held that hazards created by ski-slope design are inherent. See Finnern v. Sunday River Skiway
Corp.,
984 F.2d 530, 535 (1st Cir. 1993) (applying Maine law).
We believe the better view is that design issues should be
subjected to the same analysis as other risks. Thus, where a
hazard resulting from a design flaw may be removed or eliminated,
it is not inherent and, if obvious, the operator has a duty to
remove it. See White v. Deseelhorst,
879 P.2d 1371, 1375 (Utah
1994) (holding that jury could find that placement of "cat track"
intended to smooth traverse for novice skiers was unnecessarily
dangerous and not an inherent risk); Clover v. Snowbird Ski
Resort,
808 P.2d 1037, 1043-48 (Utah 1991) (holding that jury
could conclude that blind jump in intermediate trail is not an
inherent risk).
Skiers may, of course, be injured in the course of breaching
their statutory duty to ski in control by a hazard that is not
inherent and which the operator was under a duty to remove. In
that case, New Jersey's comparative negligence statute, N.J.S.A.
2A:15-5.1 to -5.8, will control, and the relative fault of the
parties will be weighed to determine the injured party's ultimate
recovery. See N.J.S.A. 2A:15-5.1. By turning to the doctrine of
comparative negligence in those situations where the skier has
voluntarily, but unwisely, encountered a risk that the operator
could have removed, the Ski Statute has tracked the common law of
negligence. See Meistrich, supra, 31 N.J. at 51-54 (explaining
that assumption of risk is equivalent to contributory negligence
when plaintiff is injured by hazard caused by defendant's
negligence, the existence of which plaintiff knew or should have
known and unreasonably decided to encounter).
To a significant extent, therefore, the operator's duty to
"[r]emove as soon as practicable obvious, man-made hazards" and
the skiers' assumption of inherent risks incorporate a rough
restatement of general principles of negligence, as adapted to
the context of skiing. The statutory standard does not
necessarily mirror the common law. In some respects the balance
has been shifted in favor of operators. For example, a danger
that is foreseeable may fall short of being "obvious."
Nonetheless, the analysis of liability under the Ski Statute and
the analysis under the common law of negligence have significant
parallels.
That fact, coupled with the Legislature's statements of
intent, lead us to conclude that where the Ski Statute properly
applies, the Legislature intended completely to displace the
common law with regard to the statutorily defined parties. The
Ski Statute was intended to "clearly define[] the responsibility
of ski area operators." N.J.S.A. 5:13-1(b). The legislative
committee statement stated as a primary concern the uncertainty
over operator liability following Vermont's Sunday case. See
Committee Statement, supra. That interest would have been poorly
served had the Ski Statute merely supplemented the common law.
By codifying, as modified, fundamental principles of negligence
as they apply to skiers and ski-area operators, the Legislature
provided certainty by occupying the entire field. See Jeffrey W.
Lorell, "The New Ski Law: Are Downhill Injury Claims Headed
Downhill?,"
103 N.J.L.J. 197, 210 (March 8, 1979) ("The act does
not exonerate a ski area . . . but rather embraces a test for
negligence traditionally established for this sport . . . . [I]t
only makes explicit the inapplicability of comparative negligence
in those situations where it would not apply in any event.").
Because the Ski Statute pre-empts the law of ski-area operators' liability, whether the statute is properly applied to a given set of facts becomes a critical threshold issue. We hold that the statute does not apply between these parties and that the trial court erred in this regard. Defendant does not operate a tobogganing resort nor accept consideration from persons who wish to toboggan on its premises. Neither plaintiffs nor any
other tobogganers tendered consideration for tobogganing and, if
they had, presumably the consideration would have been refused
and the tobogganers denied admission to the slopes. Under the
terms of the Ski Statute, therefore, defendant was not an
operator as to these tobogganers, plaintiffs were not skiers with
regard to Great American, and the Ski Statute was inapplicable.
We hold, however, that defendant is barred by the doctrine
of invited error from contesting that threshold issue. The
doctrine of invited error operates to bar a disappointed litigant
from arguing on appeal that an adverse decision below was the
product of error, when that party urged the lower court to adopt
the proposition now alleged to be error. The rule is based on
considerations of fairness and preservation of the integrity of
the litigation process. "Elementary justice in reviewing the
action of a trial court requires that that court should not be
reversed for an error committed at the instance of a party
alleging it." Bahrey v. Poniatishin,
95 N.J.L. 128, 133 (E. & A.
1920).
Thus, where error was advanced to secure a tactical
advantage at trial, the party responsible will not be permitted
to complain on appeal. "The defendant cannot beseech and request
the trial court to take a certain course of action, and upon
adoption by the court, take his chance on the outcome of the
trial, and if unfavorable, then condemn the very procedure he
sought and urged, claiming it to be error and prejudicial."
State v. Pontery,
19 N.J. 457, 471 (1955); see Carrino v.
Novotny,
78 N.J. 355, 369 (1979) (holding that defendant who
induced erroneous involuntary dismissal was bound by error and
could not later contest amount of co-defendant's liability).
Particularly where the parties appear to be in agreement on a
difficult question of law, the trial court's reliance on the
erroneous contentions of counsel is understandable, and it would
be unfair to both the trial court and to the appellant's
adversary to reverse. See Terminal Constr. Corp. v. Bergen
County Hackensack River Sanitary Sewer Dist. Auth.,
18 N.J. 294,
339 (1955); Spedick v. Murphy,
266 N.J. Super. 573, 593 (App.
Div.) (holding that appellant could not object to admission of
doctors' testimony where court and counsel all agreed that
doctors could testify), certif. denied,
134 N.J. 567 (1993);
Venuto v. Lubik Oldsmobile, Inc.,
70 N.J. Super. 221, 229 (App.
Div. 1961) (holding party may not raise as plain error admission
of evidence where party agreed to its admission at trial). The
rationale is not far removed from that underlying the doctrine of
waiver, in that counsel has deprived the court of the opportunity
to make a correct ruling and the adversary of the ability to meet
the objection. See United States v. General Motors Corp.,
226 F.2d 745, 750 (3d Cir. 1955); Vartenissian v. Food Haulers, Inc.,
193 N.J. Super. 603, 610 (App. Div. 1984).
The invited error doctrine has been applied in a wide
variety of contexts, but it is particularly applicable where a
party attempts to present a different theory on which to decide
the case than the one advocated below. Thus it often has been
held that a party may not argue that the jury was instructed to
apply the wrong legal standard if that party argued for the
application of that standard at trial. Titus v. Lindberg,
49 N.J. 66, 78 (1967); Battenfeld v. Gregory,
247 N.J. Super. 538,
548 (App. Div. 1991); Skripek v. Bergamo,
200 N.J. Super. 620,
632 (App. Div.), certif. denied,
102 N.J. 303 (1985). There is
no reason to hold differently when the jury is instructed to
apply a statutory as opposed to a common-law standard. See Fox
v. Township of Parsipanny-Troy-Hills,
199 N.J. Super. 82, 89
(App. Div.), certif. denied,
101 N.J. 287 (1985); Gilborges v.
Wallace,
153 N.J. Super. 121, 138-39 (App. Div. 1977), rev'd on
other grounds,
78 N.J. 342 (1978).
The record makes plain that the interpretation of the Ski
Statute was vigorously contested before the trial court, as was
the proper way to charge the Ski Statute to the jury. However,
on the issue of whether the Ski Statute applied at all, an issue
that precedes questions concerning statutory interpretation or
the parameters of the jury charge, counsel for Great American was
adamant that it did. The trial court correctly identified the
problem as a difficult one on these unusual facts, and struggled
with its decision. Several times the court confirmed defendant's
position, inquiring at one point: "You are all taking the
position now that the Ski Statute applies?" Defense counsel
replied: "I have never said that it didn't apply, Judge."
Admittedly, defendant's position was complicated by its
argument that, under the Ski Statute, the jury should be charged
to consider plaintiffs' common-law status as trespassers on the
slope. That contention does not permit defendant now to disavow
altogether its correlative claim that the statute applied.
Defendant never asserted that the jury should not be instructed
on the ski statute unless the jury was also instructed on
plaintiffs' status as trespassers. Plaintiffs were willing to
try the case under the Ski Statute, and did so to a successful
conclusion. The trial court's reliance on the positions of
counsel, while error, was certainly understandable, particularly
given the lack of authority on the issue. Defendant succeeded in
framing the controversy as turning on the correct interpretation
of the Ski Statute. The fact that defendant's interpretation was
rejected does not justify retrial on the theory that the Ski
Statute never applied at all.
We also hold that, having been persuaded to apply the Ski
Statute, the trial court and the Appellate Division correctly
interpreted its provisions and, accordingly, the judgment below
must be upheld. We believe that the trial court properly left to
the jury the question of whether an obvious, man-made hazard
existed, given the fact-intensive nature of this issue and its
relation to the balancing of fault. See Reisman v. Great Am.
Recreation, Inc.,
266 N.J. Super. 87, 97 (App. Div.) (holding
that determination of whether drunken employee who collided with
plaintiff was inherent risk was properly left to jury), certif.
denied,
134 N.J. 560 (1993); White, supra, 879 P.
2d at 1375
(finding issue of fact regarding whether design hazard could have
been alleviated); Lopez v. Ski Apache Resort,
836 P.2d 648, 656-57 (N.M. Ct. App.) (holding that whether ski-lift tower was
inherent risk presents question of fact), cert. denied,
833 P.2d 1181 (N.M. 1992); Clover, supra, 808 P.
2d at 1045 (stating that
whether risk is inherent is case-by-case determination).
We find that the jury charge correctly directed the
discretion of the jury and that the record provides ample support
for its findings. Unquestionably, the parking lot and the
utility pole were man-made. Furthermore, the jury properly could
have considered the position of those obstacles at the bottom of
the slope as part of the slope's design, and whether the limited
flat area for tobogganers to come to a stop constituted an
additional man-made element of the hazard. The fact that there
was no showing that the flat area of the Bunny Buster slope was
hazardous for persons on skis could not have precluded a finding
that it was a hazard for persons on toboggans. In addition to
the obvious fact of plaintiffs' injuries, there was ample expert
testimony on the danger of tobogganing on the Bunny Buster.
Having been instructed that plaintiffs were skiers for
purposes of the Ski Statute, and given the evident peril of
tobogganing on the Bunny Buster, the jury could consider evidence
that Great American was aware of the presence of tobogganers on
its slopes in assessing the "obviousness" of the hazard. The
inviting aspect of the Bunny Buster, illuminated at night when
the ski lift was not operating, and the presence of other
tobogganers apparently without interference from Great American
were signals to plaintiffs that tobogganing was at least tacitly
approved and safe and could also support the inference that
defendant should have been aware of plaintiffs' presence. See
McLaughlin v. Rova Farms, Inc.,
56 N.J. 288, 304 (1970) (stating
that presence of platform over water at swimming resort
constituted invitation to dive and implied representation that
diving was safe); cf. Harrison v. Middlesex Water Co.,
158 N.J.
Super. 368, 376-78 (App. Div. 1978) (dismissing claim against
municipal landowner by skaters who fell through ice for, among
other reasons, lack of evidence of constructive notice to police
of plaintiffs' presence on the ice or that plaintiffs relied on
police failure to order them off the ice in assuming that ice was
safe), rev'd on other grounds,
80 N.J. 391 (1979). The proximity
of the condominium development to the ski resort and the mutual
benefit the two enterprises derive from each other's presence
also would have been legitimate factors for the jury to consider
in assessing whether it was obvious to Great American that its
customers and others would venture onto the slopes for sledding
or tobogganing after the lifts shut down for the night. Finally,
the jury reasonably could have determined that Great American
should have been aware that tobogganers using the Bunny Buster
hill would confront a hazardous condition posed by the
configuration of the hill and the adjacent parking area.
Turning to whether the hazard was inherent or whether it
might practicably have been removed, the jury could have
considered whether it was appropriate to locate the parking lot
and the utility pole so close to the bottom of the hill or
whether they could have been relocated and the flat area at the
bottom of the hill extended. Defendant argued that the parking
lot was not within Great American's control, but the jury could
reasonably have discounted this claim. Nor need the jury have
found that such drastic safety measures should have been
undertaken. More efficient security patrols, or, as the
Appellate Division recognized, a sign warning that tobogganing
was unsafe on the Bunny Buster, might have reduced the hazard and
thus "removed" it for the purposes of the Ski Statute. Thus the
jury had ample grounds to find that the hazard was not inherent.
The jury could properly have weighed all of these factors to
find that there was an "obvious, man-made hazard" that defendant
could have removed, but did not. Except for the trespasser issue
and some minor points not preserved on appeal, defendant did not
object to the jury charge, and indeed argued for the instruction
that a breach of a statutory duty was the equivalent of
negligence. Concerning the plaintiffs' statutory duties, it
cannot reasonably be contested that they breached their duties to
maintain control and not to attempt a slope beyond their
abilities. The jury's verdict, holding Great American 54" and
plaintiffs 22" at fault was a reasonable one on the record of
this case.
We would not apply the doctrine of invited error where to do
so would cause a fundamental miscarriage of justice. That
exception to the doctrine has been explicitly recognized in
criminal matters, e.g., State v. Ramseur,
106 N.J. 123, 281-82
(1987) (quoting State v. Harper,
128 N.J. Super. 270, 278 (App.
Div.) (Handler, J.A.D.), certif. denied,
65 N.J. 574 (1974)), but
we are satisfied that, in the unusual case, it may apply in civil
proceedings as well. See Ferry v. George Settle Fischer Baking
Co.,
6 N.J. 262 (1951) (ordering new trial for several joint
tortfeasors, including those who caused error complained of,
where to do otherwise might result in those defendants bearing
entire burden of plaintiff's damages). It has been held that
invited error will not be grounds for reversal on appeal, even
though it would otherwise be cognizable as plain error affecting
substantial rights of the appellant. Schult v. H. & C. Realty
Corp.,
53 N.J. Super. 128, 136 (App. Div. 1958), certif. denied,
29 N.J. 279 (1959). We need not determine here the quantum of
prejudice that would justify relaxing the invited error rule,
because we are convinced that, in this case, the verdict would
have been the same had the common law been charged.
We cannot agree with defendant that plaintiffs, as
trespassers, were owed no more than a duty to refrain from
willfully injuring them. It is settled that the common-law
classifications of persons on land should be applied flexibly in
assessing the landowner's general tort obligation to avoid foreseeable harm to others. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438-39 (1993); Butler v. Acme Markets, Inc., 89 N.J. 270, 275-77 (1982). Landowners owe a higher duty even to trespassers when their presence is foreseeable, see Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959); Imre v. Riegel Paper Corp., 24 N.J. 438, 444-45 (1957), particularly if an artificial condition or "dangerous instrumentality" on the land poses a danger to them. Renz v. Penn Central Corp., 87 N.J. 437, 462 (1981); Imre, supra, 24 N.J. at 445; Restatement (Second) of Torts § 337 (1965) (setting forth rule of liability for "Artificial Conditions Highly Dangerous to Known Trespassers"). We need not struggle to place plaintiffs within one or another of the common-law classifications, nor need we determine whether the technical elements of the dangerous instrumentality rule are satisfied. The issue is whether, "in light of the actual relationship between the parties under all of the surrounding circumstances," the imposition of a dut