Skiing accident suit pleads negligent first aid based on actions of the ski patrolPosted: October 14, 2013 Filed under: California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Fisher, Inc., National Ski Patrol, NSP, Sierra Summit, ski area, Ski Patrol, Ski Resort, Ski Summit 2 Comments
Release and statute protecting pre-hospital care provider’s defeats plaintiff’s claims
Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185
Plaintiff: John G. Fisher
Defendant: Sierra Summit, Inc. et al.,
Plaintiff Claims: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident.
Defendant Defenses: Release, Assumption of the Risk, Health and Safety Code section 1799.102 and Health and Safety Code section 1799.108
Holding: for the Defendant Ski area
The plaintiff in this case was injured when he skied into a “hole in the snow” at the ski area. He also claimed the ski patrol “contributed to his injuries by providing first aid negligently.” The plaintiff’s injuries rendered him a quadriplegic.
The defendants filed a motion for summary judgment. The lower court throughout the plaintiff’s claim based on a release he signed when he rented his skis and that the plaintiff’s negligent first aid claim was barred by the California Good Samaritan Act.
The plaintiff pleaded:
The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident.
The second claim relating to the equipment was voluntarily dismissed by the plaintiff.
The defendants argued that the release signed by the plaintiff was a voluntary assumption of the risk. They supported this assertion by a statement that the area has been previously inspected by the defendant and did not find any conditions that needed corrections in the slope.
The defendants then placed the following information in their motion concerning the negligent first aid allegations.
Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop.
The defendant’s argument was fairly simple. The plaintiff stated he was paralyzed during the crash. Therefore, the ski patrol did not create his injuries. The defendants then argued that because the ski patrol did not receive compensation from the plaintiff, they were protected by the Good Samaritan Act. The case does not state whether the ski patrollers that responded were volunteers or paid.
The defendant also argued that the ski patrollers had all been properly trained, and the plaintiff had presented no evidence that the ski patrol acted in bad faith or grossly negligent. In general, Good Samaritan acts do not provide protection for gross negligence or bad faith.
The plaintiff appealed.
Summary of the case
The court quickly agreed that the release stopped the plaintiff’s claims about the conditions on the slope.
The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible.
The plaintiff also argued the release violated public policy because the release was not clear on what it covered. The plaintiff argued the release only covered the rental of the equipment while the court decided the release covered his accident also.
…Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.
The main issue and one of interest in this case is the court’s analysis of the negligent first aid claim.
Plaintiff argued that the release did not apply to the negligent first aid allegations. The plaintiff argued:
… because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter.
The court decided not to debate the arguments made by the parties at the trial court level that the ski patrollers were protected by the Good Samaritan law because of the compensation issue. The court decided the ski patrollers were immune under another California law Health and Safety Code §1799.108 “which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith.”
The statute states:
“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”
The court first described the burden the plaintiff had to meet to prove his case.
He only claims there is a triable issue about whether they were grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith.
The court then looked at the allegations made by the plaintiff failed to meet the burden.
Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of persuasion that Fisher cannot prove an essential element of this cause of action.
Since the plaintiff did not allege that the action of the patrollers was grossly negligent or done in bad faith, nor did he plead any allegations that could be interpreted as such, the court held the patrollers were immune from litigation under the statute.
So Now What?
One of the major issues for the ski industry that this court could find a way around, was that releases used by the rental shops only cover rental of the equipment under most state laws. It does not take much to have your attorney write your equipment rental release to also cover ski school classes, or season passes, and any other activity at the resort.
If third party ski rental shops are also selling your lift tickets as part of the lift ticket package pay to have the third party rental shops release cover your ski area also.
Physicians have argued for a decade that they should be protected by a Good Samaritan act because they were not paid by the patient, but paid by the hospital were the patient was at the time of the alleged injury. This argument has failed repeatedly for physicians. The court in skipping this argument in this case probably saved itself from the numerous court cases with this type of holding.
The court finding another statute to protect the patrollers was valuable. The statute is rare and not found in many other states. However, it could be applicable in all types of outdoor recreation businesses and programs in providing liability protection in California.
The first step in meeting the protections provided by Health and Safety Code §1799.108 would be to find the list of first aid “certificate[s] issued pursuant to this division” and making sure your guides, instructors and patrollers all have the required first aid training and certificate. I would collect the certificates each year and keep them copies in a file to make sure they were always easily found. After that the application of the law should be fairly consistent based on this case.
However, the court stated the law had been changed since the accident and used the older version of the law, as appropriate. The new law states:
1799.108. Emergency field care treatment by certificate holder
Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.
California Health and Safety Code §1799.102 states:
§ 1799.102. Emergency care at scene of emergency; Liability
(a) No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision applies only to the medical, law enforcement, and emergency personnel specified in this chapter.
(1) It is the intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.
(2) Except for those persons specified in subdivision (a), no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision shall not be construed to alter existing protections from liability for licensed medical or other personnel specified in subdivision (a) or any other law.
(c) Nothing in this section shall be construed to change any existing legal duties or obligations, nor does anything in this section in any way affect the provisions in Section 1714.5 of the Civil Code, as proposed to be amended by Senate Bill 39 of the 2009-10 Regular Session of the Legislature.
(d) The amendments to this section made by the act adding subdivisions (b) and (c) shall apply exclusively to any legal action filed on or after the effective date of that act.
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What if the hole was in the dirt and the plaintiff was hiking? Why is the ski area responsible for nature. What if a kid dug the hole? What if a large skier fell and made the hole? Wouldn’t the resort have to line the run with people watching to see what happened.
I think in this case the plaintiff’s argument is valid, but the hole was not always there so there is no way that the defendants would have known that it was there. Maybe if the park was surveyed a little more often it could have been prevented. I think in this case charges must be dismissed.