Barbara Fakhouri v. Ober Gatlinburg, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0100p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BARBARA FAKHOURI, ┐

Plaintiff-Appellant, │

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v. > No. 15-5972

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OBER GATLINBURG, INC., │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 3:13-cv-00517—Curtis L. Collier, District Judge.

Decided and Filed: April 21, 2016

Before: SUTTON and GRIFFIN, Circuit Judges; OLIVER, District Judge.*

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COUNSEL

ON BRIEF: Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake,

Michigan, for Appellant. Benjamin W. Jones, Caitlyn Luedtke Elam, LEWIS, THOMASON,

KING, KRIEG & WALDROP, P.C., Knoxville, Tennessee, for Appellee.

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OPINION

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SUTTON, Circuit Judge. Barbara Fakhouri sought damages from a Tennessee ski resort

after she suffered injuries while using a tramway on the resort’s property in August 2012.

Because a Tennessee statute immunizes the ski resort from liability for this claim, we affirm the

district court’s grant of summary judgment to the resort.

*

The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the Northern District of

Ohio, sitting by designation.

1

No. 15-5972 Fakhouri v. Ober Gatlinburg, Inc. Page 2

Fakhouri, a resident of Michigan who uses a wheelchair, traveled to eastern Tennessee

for a family vacation in the summer of 2012. She visited Ober Gatlinburg, a ski resort that has at

least four slopes, including advanced and expert routes. The business model for a Tennessee ski

resort, no surprise, does not depend on earnings from ski lift tickets alone. The resort also has a

year-round amusement park, restaurant, lounge, and shopping center alongside the ski paths and

mountain trails. To bring visitors to and from the ski area and associated attractions, Ober

Gatlinburg operates a tramway, which Fakhouri rode without incident up the mountain when she

arrived at the site. When she tried to enter the tram for her return trip, however, her wheelchair

caught on the tram, breaking one of the wheels and causing her leg to buckle underneath the

chair. She sought medical treatment for injuries to her leg and neck, and she continues to

experience swelling, weakness, poor blood flow, and discoloration in the affected leg.

Invoking the federal courts’ diversity jurisdiction, Fakhouri sued Ober Gatlinburg in the

Eastern District of Tennessee. She claimed that the resort negligently failed to ensure her safe

passage on the tram under Tennessee law. The district court granted summary judgment to the

resort, relying on a Tennessee statute that precludes liability for ski resort operators under certain

conditions. Fakhouri v. Ober Gatlinburg, Inc., No. 3:13-CV-517, 2015 WL 4724207, at *2–4

(E.D. Tenn. Aug. 10, 2015). Fakhouri appealed.

“[N]o action shall lie against any [ski area] operator by any skier or passenger,”

Tennessee’s Ski Area Safety and Liability Act says, as long as the operator complies with the

Act itself and with “other state acts pertaining to ski areas.” Tenn. Code Ann. §§ 68-114-101,

-107(a). The reason for the limited liability is that, unless specified exceptions apply, “each skier

or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the

skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in

Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or

downhill skiing.” Id. § 68-114-103.

These provisions, taken together, preclude Fakhouri’s lawsuit if (1) she was a “skier or

passenger,” (2) Ober Gatlinburg is a “ski area operator,” and (3) her injuries “aris[e] out of” her

“use of any passenger tramways associated with Alpine or downhill skiing.” All three conditions

for the resort’s immunity apply.

No. 15-5972 Fakhouri v. Ober Gatlinburg, Inc. Page 3

One: Fakhouri was a passenger on the tramway. The statute defines “[p]assenger” to

include “any person . . . in the act of boarding or embarking upon or disembarking from[] a

passenger tramway.” Id. § 68-114-102(2). Fakhouri acknowledges that her injury occurred

while she was getting onto the tram, meaning she comfortably fits the statutory definition.

Two: Ober Gatlinburg is a ski area operator. That term covers “a person or organization

having operational responsibility for any ski area.” Id. § 68-114-102(5). A “ski area,” in turn,

“means all the ski slopes and ski trails and passenger tramways administered or operated as a

single enterprise within [Tennessee].” Id. § 68-114-102(4). Ober Gatlinburg operates “ski

slopes,” “ski trails,” and a “passenger tramway[]” in Tennessee, which means it qualifies as a ski

area operator.

Three: Fakhouri’s injuries “ar[ose] out of” her use of a “passenger tramway[] associated

with Alpine or downhill skiing.” Id. § 68-114-103. Fakhouri testified that her injuries occurred

when her wheelchair “hit” something and “tipped forward” as she “headed towards the tram” to

go down the mountain. R. 20-2 at 18–19. And the tram itself is “associated with Alpine or

downhill skiing” because it brings visitors up to and (sometimes) down from the slopes at Ober

Gatlinburg.

Because the resort satisfied all three grounds for immunity, the Ski Area Safety Act bars

Fakhouri’s claim. She “assumed the risk” for injuries arising from her use of the tramway,

which means “no action shall lie” against Ober Gatlinburg. Tenn. Code Ann. §§ 68-114-103,

-107(a).

Fakhouri’s rejoinders do not alter this conclusion. She claims that Ober Gatlinburg was

not acting as a “ski area operator” at the time of her injuries, because “there was no snow on the

ground” and no one was “engaged in ski-related or winter activities” at the time of her trip:

August 2012. Appellant’s Br. 15. But the resort’s status as a “ski area operator” does not

change with the seasons. The “ski area” that Ober Gatlinburg “operat[es]” consists of the “ski

slopes,” “ski trails,” and “passenger tramway[].” Tenn. Code Ann. § 68-114-102(4). The

tramway does not become any less a part of that area when the snow melts each spring (or late

No. 15-5972 Fakhouri v. Ober Gatlinburg, Inc. Page 4

winter). Ober Gatlinburg thus “operat[es]” a ski area whenever it operates the tramway, which it

does each month of the year, making it a “ski area operator” year round.

Fakhouri adds that her injuries did not “aris[e] out of” her “use of any passenger

tramways associated with Alpine or downhill skiing.” Id. § 68-114-103. As she reads the

provision, the final phrase (“associated with Alpine or downhill skiing”) modifies the word

“use,” making the statute applicable only to those who use Ober Gatlinburg’s facilities for a

purpose “associated with” skiing—namely, a skiing-related purpose. But that is not the first

thing someone thinks when reading these words. The most natural reading of the provision is

that it applies when one uses a tramway associated with skiing. That a tramway is associated

with skiing, as this one is, does not require that it be used for skiing each time, as Fakhouri

claims. Rules of grammar support this interpretation. “[A] limiting clause or phrase . . . should

ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart

v. Thomas, 540 U.S. 20, 26 (2003); see Lockhart v. United States, 136 S. Ct. 958, 962–63 (2016);

In re Sanders, 551 F.3d 397, 399 (6th Cir. 2008); see also Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 152–53 (2012) (discussing the nearest-

reasonable-referent canon). Because “associated with” immediately follows “tramways,” that is

the word it modifies. As long as the tramway itself is “associated with Alpine or downhill

skiing,” as this tramway undoubtedly is, the statute precludes liability.

Fakhouri’s interpretation, moreover, reads two crucial words out of the Ski Area Safety

Act. Recall that the law protects ski area operators from lawsuits brought by a “skier or

passenger.” Tenn. Code Ann. § 68-114-107(a) (emphasis added). A skier, the statute says, is

“any person present in a ski area for the purpose of engaging in the sport of skiing, Nordic,

freestyle or other types of ski jumping and who is using skis, a sled, a tube or a snowboard.” Id.

§ 68-114-102(6). Because the Act covers lawsuits brought by “skier[s] or passenger[s],” it must

capture some claims brought by people not “present in a ski area for the purpose of engaging in

the sport of skiing.” Fakhouri’s theory, however, leaps over “or” and “passenger,” drastically

reducing, if not eliminating altogether, the class of “passengers” not already covered as “skiers.”

Trying to overcome this problem, Fakhouri frames her “intent” in coming to the resort as

seeking “to enjoy the various summer amusements and sights in Gatlinburg, none of which

No. 15-5972 Fakhouri v. Ober Gatlinburg, Inc. Page 5

included Alpine or downhill skiing or any winter-related sport.” Appellant’s Br. 12–13. But if

the Act precludes only lawsuits brought by those who “inten[d]” to ski, it precludes only lawsuits

brought by “skiers,” shearing any substance from the term “passenger.” Our reading avoids that

pitfall, ensuring that the statute covers actions brought by anyone who, like Fakhouri, is injured

while “boarding or embarking upon” the tram, see Tenn. Code Ann. § 68-114-102(2)—

regardless of the individual’s “intent” in visiting the resort and regardless of the season in which

the individual makes the visit.

Fakhouri points to two cases that purport to support her view. The first is Terry v. Ober

Gatlinburg, Inc., an unpublished Tennessee Court of Appeals case holding that the Ski Area

Safety Act “does not protect a ski area operator from negligent rental operations,” such as renting

out skis and ski bindings to guests. No. 03A01-9701-CV-00026, 1998 WL 54700, at *1, *3–4

(Tenn. Ct. App. Feb. 3, 1998). But Terry found only that the Act was “silent concerning liability

for rental operations.” Id. at *4. That silence, in light of the canon “that statutes in derogation of

[the] common law are to be strictly construed and confined to their express terms,” meant that

the law did not preclude liability for a ski area’s rental business. Id. The same reasoning does

not apply to Fakhouri’s claim, because the statute does, by its “express terms,” id., limit liability

arising from the use of passenger tramways. See Tenn. Code Ann. § 68-114-103.

Albert ex rel. Albert v. Ober Gatlinburg, Inc., is no more helpful. No. 3:02-CV-277,

2006 WL 208580 (E.D. Tenn. Jan. 25, 2006). It is an unpublished district court decision that

denied summary judgment to a ski area operator that arguably “failed to exercise reasonable care

when it opened [a] ski resort” during unsafe conditions. Id. at *5. But recall that the Ski Area

Safety Act does not shield operators from liability when they fail to comply with state statutes.

Tenn. Code Ann. § 68-114-107(a). The plaintiff in Albert claimed just that, introducing evidence

that the operator violated state law by “fail[ing] to designate” the hill’s level of difficulty and

declining “to warn skiers of . . . changing conditions on the slopes.” 2006 WL 208580, at *3, *5;

see Tenn. Code Ann. § 68-114-106(1), (2)(A).

Fakhouri has not submitted any similar evidence pointing to a statutory violation by Ober

Gatlinburg. Her complaint, it is true, seemed to allege violations of a state law that gives ski area

operators “primary responsibility for the design, construction, maintenance, and inspection of

No. 15-5972 Fakhouri v. Ober Gatlinburg, Inc. Page 6

any passenger tramway.” Id. § 68-114-105. But the district court did not read it that way,

reasoning that Fakhouri’s claims related only to negligence in overseeing “the embarking,

disembarking, and riding of the passenger tramway,” not to the maintenance or inspection of the

tramway itself. Fakhouri, 2015 WL 4724207, at *4. Fakhouri does not challenge that

determination on appeal. Once Ober Gatlinburg met its summary judgment burden by

demonstrating that Fakhouri’s claims failed under the Ski Area Safety Act, she could overcome

that showing only with proof of her own—proof indicating that an exception to the Act applied

because the resort did not meet the statutory requirements. See Fed. R. Civ. P. 56(a). She failed

to do so, never invoking § 68-114-105 in her summary judgment filing (or her briefs on appeal).

Because Ober Gatlinburg established that the Ski Area Safety Act applies, and because Fakhouri

never rebutted that showing, the district court correctly granted summary judgment to the resort.

For these reasons, we affirm.