Question answered in California, what happens if an injured skier is injured again while be tobogganed down the ski slope?Posted: September 10, 2018 Filed under: Assumption of the Risk, California, Ski Area, Skiing / Snow Boarding | Tags: argues, Assumption of risk, bottom, Cause of action, Citations, Common Carrier, doctrine of primary assumption, Heavenly, Heavenly Mountain Resort, Heavenly Valley, Heavenly Valley Ski Area, hit, injuries, issues, knee, loaded, motion for a new trial, Mountain, patrol, pleadings, Rescue, Resort, Risks, Ski, skier's, Sled, Snowboarders, Sport, Summary judgment, summary judgment motion, Toboggan, Transport, triable, Trial court Leave a comment
If you assume the risk of skiing in California, you also assume the risk of being injured being tobogganed down the hill by a ski patroller.
Martine v. Heavenly Valley, 2018 Cal. App. Unpub. LEXIS 6043
State: California, Court of Appeal of California, Third Appellate District
Plaintiff: Teresa Martine
Defendant: Heavenly Valley Limited Partnership
Plaintiff Claims: ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree, A ski patroller operating a sled is a common courier
Defendant Defenses: Assumption of the Risk
Holding: For the defendant
This is a first of its kind case that I have found alleging negligence against the ski area for an injury received while being transported down a ski run in a toboggan by a ski patroller.
The case also looked at whether a ski area operating a ski patrol using toboggans was a common carrier, owing “passengers” the highest degree of care.
Neither argument by the plaintiff won because she assumed the risks of skiing and after claiming an injury, the risk of being transported down the mountain by the ski patroller in a toboggan.
As the plaintiff was waiting for a ski patroller to come assist a friend she was skiing with she felt her knee slip. She then requested a toboggan ride down the mountain from the ski patrol.
While descending the mountain, the patroller claims he was hit by a snowboarder and knocked down causing the toboggan to crash. The plaintiff alleged the ski patroller was skiing too fast and lost control sending the toboggan tumbling down the mountain injuring her.
“Heavenly contends that while [Horn] was skiing down the groomed and limited pitch terrain on Lower Mombo, three snowboarders emerged from the trees, off-piste to his right. [Fn. omitted.] While the snowboarders turned to their right, Heavenly claims the last snowboarder clipped [Horn’s] right ski, causing him to fall. Based upon [Horn’s] view, as the snowboarders turned right, they did so on their toe side edge, which put their backs to him. [Horn] tried to avoid a collision with the last snowboarder, but he was unsuccessful, and when he fell the toboggan rolled over. Heavenly alleges that the rollover caused some of plaintiff’s equipment in the toboggin to hit her head.
“Plaintiff, however, contends there was no contact with any of the snowboarders, who she claims were downhill of [Horn]. Instead, plaintiff argues [Horn] lost control of the sled, and he was going too fast and fell. Plaintiff further asserts that [Horn’s] reports indicate the incident did not involve any collision, and the toboggan tumbled instead of simply rolling over. Plaintiff also contends her initial head injuries were caused by the sled tumbling out of control and hitting a tree.”
The plaintiff filed suit, one year 11 months after her injury, claiming a simple negligence claim. The ski area answered and pled numerous affirmative defenses, including the defense of assumption of the risk.
An affirmative defense is one that must be plead by the defendant, or it is lost. Affirmative defenses are listed by the courts, and their requirements are specific and known so that the parties understand exactly what is meant by the defense.
The ski area eventually filed a motion for summary judgment based on the affirmative defense of assumption of the risk. The trial court agreed and granted the defendants motion. The plaintiff appealed, and this decision is the California Court of Appeals upholding the trial court’s decision.
Analysis: making sense of the law based on these facts.
The analysis started with a review of the findings of the trial court.
The trial court found, in part, that Martine voluntarily engaged in the activity of skiing and injured her knee while doing so. The court further found that Martine voluntarily summoned the ski patrol for help and voluntarily accepted the ski patrol’s aid knowing that she and Horn risked interference from, or collisions with, other skiers or snowboarders as they descended the mountain.
The court then looked at how primary of assumption of the risk as defined under California law would apply to this case.
“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.”
If the injured party voluntarily agrees to participate, in the sport of skiing or in being transported down the mountain by the ski patrol, the plaintiff assumed the risk of her injuries.
You volunteer to ski; you volunteer to get in the toboggan and you volunteer to be skied down the hill by the patroller. You, therefore, cannot sue because of the primary assumption of the risk doctrine. You knowingly assumed the risk leading to your injuries.
The plaintiff argued on appeal that a ski patroller running a toboggan is a common carrier. A common carrier is generally known as a business that transport people for a fee. Trains, subways, and airlines are examples of common carriers. A common carrier owes the highest degree of care to those who the common carrier is transporting.
Specifically, a common carrier must “do all that human care, vigilance, and foresight reasonably can do under the circumstances” to avoid injuring those that it carries.
California defines common carries by statute, Civil Code section 2168, which defines common carrier as “[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages is a common carrier of whatever he thus offers to carry.”
In California and Colorado, a ski area is a common carrier when someone is riding the ski lift. They are transporting people for hire and in the business of doing so to anyone who buys a ticket.
There is a three-part test to determine whether someone transporting someone for hire is a common carrier.
In deciding whether Heavenly is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services.
The court did not have to determine if Heavenly was a common carrier because the plaintiff put forth no facts, no evidence that the ski area and a ski patroller with a toboggan were a common carrier. With no evidence, the plaintiff cannot make an argument supporting her claims, and the court could not make a ruling.
The court, however, still overruled the argument stating:
Further, descent from a mountain via rescue sled operated by ski patrol is distinguishable from the ski lifts discussed in Squaw Valley because unlike the lifts that indiscriminately “carry skiers at a fixed rate from the bottom to the top” of the mountain, rescue patrollers, at a patroller’s discretionary election, transport injured skiers without any apparent compensation to the bottom of the mountain.
The California Appellate Court upheld the dismissal of the plaintiff’s complaint.
So Now What?
You always have the option, unless you are unconscious, to refuse the toboggan ride down the mountain and get down on your own. In this case, it almost sounds like the plaintiff still could have skied down but did not.
It does not matter though because once you assume the risk of skiing you assume all the risks associated with the activity, including the risks of additional injury while being rescued.
What do you think? Leave a comment.
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