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Gemmink v. Jay Peak, Inc.

United States District Court, D. Vermont

June 23, 2014

PAUL A. GEMMINK, Plaintiff,
JAY PEAK, INC., Defendant.


J. GARVAN MURTHA, District Judge.

I. Introduction

In this diversity action commenced in February 2012, pro se plaintiff Paul A. Gemmink ("Gemmink" or Plaintiff) asserts a premises liability claim against Defendant Jay Peak, Inc. ("Jay Peak" or Defendant) stemming from an alleged February 2011 collision between Gemmink and an unidentified skier or snowboarder on Jay Peak's premises. (Doc. 1 ("Compl.").) Jay Peak moves for summary judgment dismissing the complaint in its entirety (Doc. 44) and to exclude Gemmink's medical expense, personal expense, and medical transportation expense claims (Doc. 45). Gemmink opposes summary judgment (Docs. 46, 60), but has not responded to the motion to exclude. For the following reasons, Defendant's motion for summary judgment is granted and its motion to exclude is denied as moot.

II. Background[1]

On February 21, 2011, Paul Gemmink, an Ontario resident, and his daughter, Christine Gemmink (Christine), were paying guests skiing at Jay Peak ski resort in Jay, Vermont. On the run of the incident, Gemmink and Christine descended the Spillway trail, eventually entering and stopping on the Northwest Passage trail. Christine proceeded down the Northwest Passage trail to the intersection with the Kokomo trail where she turned and proceeded to the base of the ski lift. When she reached the lift, Gemmink was no longer behind her. About fifteen minutes later, she saw ski patrollers transporting an injured skier and recognized her father as that skier. At her deposition, Christine stated that she saw a jump near the trees on the skier's right side of the trail where the Northwest Passage trail turned on to the Kokomo trail. (Doc. 44-3 at 9.)

Jay Peak Ski Patroller William Vore was dispatched to an incident at the intersection of Northwest Passage and Kokomo trails. When Vore arrived, he observed Gemmink lying on his back off the skier's left side of the Kokomo trail. Gemmink has no recollection of the incident. Christine does not know where Gemmink's "accident actually occurred." See Docs. 57 at 1, 60 at 2.

III. Discussion

A. Pro Se Litigant

Because Gemmink is a pro se litigant, his submissions are held "to less stringent standards than formal pleadings drafted by lawyers." Hugues v. Rowe , 449 U.S. 5, 9 (1980) (citation omitted). While a "special solicitude" is appropriately accorded to a pro se litigant, Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474-75 (2d Cir. 2006), nonetheless, a pro se litigant is not exempt from compliance with relevant rules of procedural and substantive law, Traguth v. Zuck , 710 F.2d 90, 95 (2d Cir. 1983). The Court notes Gemmink is an attorney registered to practice in Ontario, Canada. Gemmink Aff. ¶ 1 (Doc. 33).

B. Motion for Summary Judgment

In this diversity action, the Court applies federal procedural law and Vermont substantive law. Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). Summary judgment is appropriate only where the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The Court must resolve ambiguities and draw inferences in favor of the non-moving party. Salahuddin v. Goord , 467 F.3d 263, 272 (2d Cir. 2006) (citation omitted).

The court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried. See, e.g., Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986); Rule v. Brine, Inc. , 85 F.3d 1002, 1011 (2d Cir. 1996). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Fischl v. Armitage , 128 F.3d 50, 56 (2d Cir. 1997) (internal quotation marks and citation omitted). Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment. See, e.g. , Fed.R.Civ.P. 56(e) 1963 advisory committee's note; Anderson , 477 U.S. at 255.

To prove his negligence claim, Gemmink must show (1) Jay Peak owed him a duty, (2) Jay Peak breached that duty, (3) actual injury resulted, and (4) a causal link between the breach and the injury. Zukatis v. Perry , 682 A.2d 964, 966 (Vt. 1996). Gemmink bears the burden of proof and may "not overcome [the burden] by the introduction of facts generating only conjecture, surmise or suspicion." Marshall v. Milton Water Corp. , 270 A.2d 162, 164 (Vt. 1970). Instead, he must garner "direct[] support[] by some evidence" of each issue to be proved. Id . Jay Peak moves for summary judgment arguing Gemmink has failed to come forward with evidence to establish the standard of care, i.e. duty, that the alleged standard or duty was breached, or causation. (Doc. 44.)

Gemmink alleges Jay Peak breached its duty to maintain its facilities in a reasonably safe condition in a myriad of ways. Compl. ¶ 14(a)-(e). The Court determines whether a duty is owed and the scope of that duty. Buxton v. Springfield Lodge No. 679, No. 2012-398, 2014 WL 2136468, ___ A.3d ___ (Vt. May 23, 2014). A ski area has a duty "to warn of or correct dangers which in the exercise of reasonable prudence in the circumstances could have been foreseen and corrected." Dalury v. S-K-I. Ltd. , 670 A.2d 795, 800 (Vt. 1995) (internal quotation marks and citations omitted). Jay Peak argues Gemmink must come forward with expert testimony in support of the standard of care and breach of that standard because "ski industry practices and compliance with reasonable ski resort operator safety principals [sic]... are beyond the lay understanding of jurors." (Doc. 44 at 8-9.) Gemmink responded with an expert report dated over two months after Jay Peak's motion. The report states: "Jay Peak is reasonably required to prevent or warn against the risks by enforcing their own standards, policies, procedures and common industry practice regarding jumps that are built on trails by ...

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