Home ANGELA GRASS, administratrix, vs. CATAMOUNT DEVELOPMENT CORPORATION & others. [Note 1]

390 Mass. 551

May 4, 1983 - December 8, 1983

Berkshire County

Present: HENNESSEY, C.J., LIACOS, NOLAN, LYNCH, & O'CONNOR, JJ.

An action for wrongful death arising out of injury to a skier and brought against the operator of a ski area is governed by the limitation of actions provision in the wrongful death statute, G. L. c. 229, Section 2, rather than by the limitation of actions provision of G. L. c. 143, Section 71P, dealing with actions against ski area operators. [552-554]

CIVIL ACTION commenced in the Superior Court Department on March 2, 1981.

The case was heard by Simons, J., on a motion for summary judgment, and was reported by him to the Appeals Court. The Supreme Judicial Court ordered direct review on its own initiative.

William E. Smith for the defendants.

Fredric A. Swartz for the plaintiff.


O'CONNOR, J. We consider whether an action for wrongful death arising out of injury to a skier and brought against the operator of a ski area is governed by the limitation of actions provision of G. L. c. 143, Section 71P, dealing with actions against ski area operators, or by the limitation of actions provision in the wrongful death statute, G. L. c. 229, Section 2.

In her complaint, filed on March 2, 1981, the plaintiff alleged that on March 4, 1979, her intestate was injured and

Page 552

died in a skiing accident as a result of the negligent operation of a ski area by the defendants. The plaintiff sought recovery for conscious pain and suffering and death. The defendants, except for John Does I-X, answered and moved for summary judgment on the ground that the action had not been brought within the time allowed by the controlling statute of limitations. A judge of the Superior Court allowed the motion as to the claim for conscious pain and suffering, denied the motion with respect to the wrongful death claim, and reported the case to the Appeals Court for a determination of the correctness of his action relative to the wrongful death claim. [Note 2] We transferred the case here on our own motion. We affirm the judgment of the Superior Court.

General Laws c. 143, Section 71P, inserted by St. 1978, c. 455, Section 4, provides that "[n]o action shall be maintained against a ski area operator for injury to a skier" unless certain requirements with respect to notice have been met or excused. The statute further provides that "[a]n action to recover for such injury shall be brought within one year of the date of such injury." General Laws c. 229, Section 2, provides that an action to recover damages for wrongful death shall be commenced within three years from the date of death or within such further time as is provided in specified sections of G. L. c. 260. The present action was brought approximately two years after the accident and resulting death. Therefore, it was brought too late if G. L. c. 143, Section 71P, governs, but it was brought in timely fashion in so far as it asserted a claim for wrongful death if G. L. c. 229, Section 2, controls.

The defendants present two arguments in support of their position that G. L. c. 143, Section 71P, applies to actions for wrongful death: (1) the Legislature's purpose in enacting c. 143, Section 71P, was to protect the ski industry in Massachusetts, and the industry gets more protection if actions for wrongful death must be commenced within one year than if they may be brought within three years; (2) if a general statute

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and a specific statute cannot be reconciled, the general statute must yield to the specific statute, especially where the specific statute was enacted after the general statute.

The answer to the first argument is that it does not appear from the statutory language that the Legislature intended to give the ski industry the same degree of protection from wrongful death claims as from claims of less dramatic harm. We said recently, in a case involving claims for conscious pain and suffering and wrongful death against a municipality, that "[t]he Legislature might reasonably choose to put a wrongful death claimant on a different footing from one claiming injury by virtue of a defect in a way. The latter claims are likely to be myriad in number, to run a whole range of harm, and to constitute a constant drain on the governmental treasury. . . . Death claims, on the other hand, being drastic in the extreme and relatively infrequent, need not be constrained to the recovery limits of G. L. c. 84." Gallant v. Worcester, 383 Mass. 707 , 714 (1981). In Gallant, we held that the Legislature intended to distinguish claims of personal injury on account of defects in public ways from claims of wrongful death caused by such defects. Our reasoning in Gallant applies with equal force here. Personal injury claims by skiers that do not involve death, unlike death claims, may be myriad in number, run a whole range of harm, and constitute a constant drain on the ski industry. The Legislature's decision to distinguish between such claims and death claims would be both reasonable and consistent with the purpose and language of G. L. c. 143, Section 71P, and G. L. c. 229, Section 2.

Had the Legislature intended that G. L. c. 143, Section 71P, should apply to claims for wrongful death as well as to claims for injuries not resulting in death, we believe it would have done so expressly, as it has done in numerous other statutes in which the term "injury or death" or a similar expression appears. See, e.g., G. L. c. 40, Section 4; G. L. c. 131, Section 60; G. L. c. 142, Section 13; G. L. c. 152, Sections 1 (4), 7A, 31, 54A; G. L. c. 153, Section 6; G. L. c. 166A, Section 5 (c); G. L. c. 175, Sections 22A, 22C, 22E, 47, Fifth and Sixth, 48, 56, 102A, 108 (9), 111,

Page 554

111C, 112, 113L; G. L. c. 197, Section 9A; G. L. c. 214, Section 3 (9); G. L. c. 229, Sections 6C, 6E; G. L. c. 231, Section 85G; G. L. c. 258, Section 2; G. L. c. 258A, Section 1; G. L. c. 260, Section 4. It is apparent from these statutes that ordinarily the Legislature does not intend that the word "injury" should include death. There is nothing in G. L. c. 143, Section 71P, that suggests that the word "injury" should not be construed in the usual way.

The defendants' second argument is based on our statements in Pereira v. New England LNG Co., 364 Mass. 109 , 118 (1973), that "[i]f a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute. This is particularly true where . . . the specific statute was enacted after the general statute." This argument begs the question. General Laws c. 143, Section 71P, cannot be reconciled with G. L. c. 229, Section 2, only if c. 143, Section 71P, necessarily applies to wrongful death claims. But G. L. c. 143, Section 71P, may reasonably be construed not to apply to wrongful death claims, and therefore the statutes can be reconciled. Since, as we have observed in answering the defendants' first argument, neither the language nor the purpose of G. L. c. 143, Section 71P, requires it to apply to death claims, the principle on which the defendants rely is inappropriate. We conclude, therefore, that an action for wrongful death arising out of injury to a skier and brought against the operator of a ski area is governed by the limitation of actions provision in G. L. c. 229, Section 2.

Judgment affirmed.


FOOTNOTES

[Note 1] Catamount Enterprises, Catamount Ski Lodge, Inc., Catamount Ski Area, and John Does I-X.

[Note 2] No question is presented concerning the propriety of allowing summary judgment on the conscious pain and suffering claim.