Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?

NSSA website that describes skiing as safe if done under control contributes to the reasoning that skiers should be able to sue other skiers in a sport.

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

State: Minnesota; Supreme Court of Minnesota

Plaintiff: Julie A. Soderberg

Defendant: Lucas Anderson

Plaintiff Claims: Negligence

Defendant Defenses: Primary Assumption of the Risk

Holding: For the Plaintiff

Year: 2019

Summary

Primary Assumption of the Risk does not apply to collisions between skiers on the slopes in Minnesota. Any collision between two people using a ski area will now result in lawsuits.

The Minnesota Supreme Court believed that skiing, and snowboarding were not inherently dangerous because they could be done with common sense and awareness to reduce the risk, as quoted from the NSAA website.

Facts

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.” Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law.

Analysis: making sense of the law based on these facts.

The court first looked at Assumption of the risk and the differences between Primary Assumption of the Risk and Secondary Assumption of the Risk.

Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Therefore, primary assumption of risk precludes liability for negligence, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'”

The court found the ski instructor did not assume the risk of being hit. “Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So, the issue is whether she assumed the risk by implication.”

This first step in the analysis, that the ski instructor did not assume the risk of being hit, which the defense agreed to, sealed the fate of the decision. I think now days; most people consider the risk of a collision to be possible on the slopes.

So, the court then went through the history of primary assumption of the risk in Minnesota and how it was applied in baseball, skating and other sports. It then related why it has not applied primary assumption of the risk to snowmobiling.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity.

The court found that although skiers do collide with each other, it is not so frequent that it is considered an inherent risk of the sport.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .”

The National Ski Area Association, (NSAA) has this statement on their website:

Common Sense, it’s one of the most important things to keep in mind and practice when on the slopes. The National Ski Areas Association (NSAA) believes education, helmet use, respect and common sense are very important when cruising down the mountain. NSAA developed Your Responsibility Code to help skiers and boarders be aware that there are elements of risk in snowsports that common sense and personal awareness can help reduce.

The National Ski Patrol, which probably has a better understanding of the risks of skiing does not have that statement on its website. The good news is both the NSAA, and the NSP now at least have the same code on their websites. That was not true in the past.

The court then stated it just did not want to extend primary assumption of the risk to another activity.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.”

Finally, the court stated that it did not believe this decision would lead to fewer Minnesotans skiing. It will, but not by much. However, what it will do will be to increase litigation amount skiers and boarders. And if you are looking at going to a state to ski, knowing you can be sued if you hit someone else on the slopes might have you ski in another state.

Minnesota now joins Colorado in having billboards you can see leaving the ski areas asking if you have been hurt while skiing.

So Now What?

The court used an interesting analysis coupled with language from the NSAA website to determine that skiing was like snowmobiling and totally controllable, therefore, it was not a sport where you assume the risk of your injuries.

This is a minority opinion. Something this court did not even consider in its opinion. Most states you assume the risk of a collision. This decision was clearly written to increase the litigation in the state.

What do you think? Leave a comment.

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Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Julie A. Soderberg, Respondent, v. Lucas Anderson, Appellant.

No. A17-0827

Supreme Court of Minnesota

January 23, 2019

Court of Appeals Office of Appellate Courts

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

SYLLABUS

The doctrine of implied primary assumption of risk does not apply to a claim in negligence for injuries arising out of recreational downhill skiing and snowboarding.

Affirmed.

OPINION

LILLEHAUG, JUSTICE.

In 2016, a ski area outside Duluth, Spirit Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson, 906 N.W.2d 889 (Minn.App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”[1]Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg, 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790 (Minn.App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg, 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct “enlarged the inherent risks of skiing.” Id. at 893-94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id. at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. The doctrine of primary assumption of risk is part of our common law. Springrose v. Willmore, 192 N.W.2d 826, 827-28 (Minn. 1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary assumption of risk. Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose, 192 N.W.2d at 827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland, 812 N.W.2d 113, 120-21 (Minn. 2012); Springrose, 192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative defense”). Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly, 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose, 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'” Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974)); see Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk “is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty”).

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706 (Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707-08. We determined that the ball club was “bound to exercise reasonable care” to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided enough screened-in seating “for the most dangerous part of the grand stand.” Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 88 N.W.2d 94 (Minn. 1958), that a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with “a reasonable opportunity to view the participants from a safe area.” Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim, 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck, 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated that “[a]ny person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.” Id. at 455.[2]

We applied the doctrine to recreational figure skating in Moe v. Steenberg, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff” ‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo.Ct.App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121-22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.[3] To do so would relieve skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.[4] See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99 (Colo. 2016); Blackburn v. Dorta, 348 So.2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132-33 (La. 1988); Wilson v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905-06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 387 S.E.2d 511, 517-19 ( W.Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278, 1281-84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.[5]

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling,” ‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role-limited as it may be-for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied, [6] erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court of appeals’ disposition-reversal and remand-on a different ground.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.

———

Notes:

[1] Riding a snowboard “regular” means that the rider’s left foot is in the front of the snowboard, the rider’s right foot is in the back, and the rider is facing right. Riding “goofy” means that the rider’s right foot is in the front, the rider’s left foot is in the back, and the rider is facing left.

[2] In Diker v. City of St. Louis Park, 130 N.W.2d 113, 118 (Minn. 1964), and citing Modec, we stated the general rule of assumption of risk in hockey, but did not apply the rule to “a boy only 10 years of age.”

[3] In Peterson, the court of appeals affirmed the decision of the district court, which granted summary judgment to a defendant on the plaintiff’s negligence claim stemming from a collision between the two on a ski hill. 733 N.W.2d at 791. Based on other decisions in which “courts have applied primary assumption of the risk to actions between sporting participants,” the court of appeals held that “primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.” Id. at 792-93.

[4] That reluctance is also reflected in another case decided today, Henson v. Uptown Drink, LLC, N.W.2d (Minn. Jan. 23, 2019), in which we decline to extend the doctrine of implied primary assumption of risk to the operation and patronage of bars.

[5] Spirit Mountain (like many ski operators) relies on the doctrine of express primary assumption of risk. It requires patrons to execute forms and wear lift tickets whereby patrons expressly assume all risks of injury and release their legal rights.

[6] Based on our decision here, the court of appeals’ decision in Peterson, 733 N.W.2d 790, holding that implied primary assumption of risk applies to collisions between skiers, is overruled.

 


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Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.

The terrain off of the trail was different than normally found at a ski area. A 3-4 drop off into a pile of rocks. However, the risk is skiing off the trail, not what you run into when you do.

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Quan Vu and May Siew

Defendant: Ski Liberty Operating Corp., et. al.

Plaintiff Claims: Negligence and Loss of Consortium

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The definition of an inherent risk when skiing is not what causes the injury, only the risk that led to the injury. Under Pennsylvania law, there is a broad definition of inherent risks and this case was dismissed because the plaintiff assumed those inherent risks, and the defendant did not owe a duty to protect him from those risks.

Facts

The plaintiff was an experienced skier, who had been skiing for twenty years. He was skiing behind his daughter at the defendant’s ski area. A snowboarder came close to the plaintiff or hit the plaintiff sending or causing him to ski off the trail. He went off the trail, over a 3-4 drop and landed in a pile of rocks.

…Mr. Vu does not recall much detail about his accident. Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. The last thing that Mr. Vu remembered was skiing with his daughter.

He sued the defendant ski area because it was:

…negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition.

The court granted the defendants motion for summary judgment.

Analysis: making sense of the law based on these facts.

The decision was based on the Pennsylvania Skier’s Responsibility Act. The court had to decide if the risks encountered by the plaintiff were inherent risks of skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing. As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”

If there is no duty, then there can be no negligence.

Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.

Pennsylvania has a two-part test to determine if the defendant owed the plaintiff a duty.

First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of down-hill skiing.” If so, then summary judgment must be awarded against the plaintiff as a matter of law.

The first test was met; the plaintiff was skiing at the time of his accident.

The court then had to determine if the risks the plaintiff encountered were inherent to skiing. Under Pennsylvania law, inherent risks “are those that are “common, frequent, and expected” in downhill skiing.”

The plaintiff argued that because the plaintiff was no specifically aware of the risk of the 3-4-foot drop off and the pile of rocks, he could not assume the risk.

Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply.

In many cases, assumption of the risk would not be a defense if the injured plaintiff had no specific knowledge of the risk. However, it was not the case here under the statute. It did not matter if the Plaintiff had specific knowledge of the risk or a general knowledge of the risks of skiing, he assumed those risks.

The court then looked at the facts and found there were two circumstances that gave rise to the plaintiff’s injuries, veering to avoid a collision and skiing over the drop off.

The first is an inherent risk of skiing in Pennsylvania.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with an-other skier is one of the common, frequent and expected risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.

The next issue was whether skiing over the drop off into a pile of rocks was an inherent risk of skiing. Here again, the court found skiing off the trail, no matter what you may encounter once you are off the trail, is an inherent risk of skiing. The court backed its point up quite interestingly.

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis.

The court found the defendant did not owe the plaintiff a duty because he assumed the risks of his injury under the Pennsylvania Skier’s Responsibility Act.

So Now What?

Actually, an easy case. Easy under Pennsylvania law because of the Pennsylvania Supreme Courts interpretation of the Pennsylvania Skier’s Responsibility Act. When skiing in Pennsylvania collisions with other skiers or boarders are an inherent risk of skiing and skiing off the trail is also.

What do you think? Leave a comment.

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Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Quan Vu and May Siew, Plaintiffs, v. Ski Liberty Operating Corp., et. al., Defendants,

1:16-cv-2170

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2018 U.S. Dist. LEXIS 49013

March 26, 2018, Decided

CORE TERMS: skiing, trail, edge, downhill, ski, skier, snowboarder, sport, inherent risk, slope, collision, rocks, summary judgment, drop-off, att, daughter, skied, snow, pile, foot, lift ticket, knee-jerk, genuine, resort, Skier’s Responsibility Act, matter of law, specific risk, experienced, elevation, veering

COUNSEL: [*1] For Quan VU, May Siew, Plaintiffs: D. Aaron Rihn, Mark D. Troyan, LEAD ATTORNEYS, Robert Peirce & Associates, P.C., Pittsburgh, PA USA.

For Ski Liberty Operating Corp. doing business as Liberty Mountain Resort, Defendant: Anthony W. Hinkle, Snow Time, Inc., Cipriani & Werner, P.C., Philadelphia, PA, USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Plaintiffs: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Defendants: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

JUDGES: Hon. John E. Jones III, United States District Judge.

OPINION BY: John E. Jones III

OPINION

MEMORANDUM

Plaintiffs are Quan Vu and his wife, May Siew. (“Plaintiffs”). Defendants are Ski Liberty Operating Corp. and Snow Time, Inc., operating as Liberty Mountain Resort. (“Defendants”). This action arises out of a skiing accident at Liberty Mountain that left Mr. Vu severely injured. The complaint brings one count of negligence on behalf of Mr. Vu and one count of loss of consortium on behalf of Mrs. Siew, both alleging that the accident was caused by the Defendants’ negligence in maintaining the ski slope and failing to warn Mr. Vu of [*2] the slope’s hazardous condition. (Doc. 1). Presently pending before the Court is the Defendants’ motion for summary judgment. (the “Motion”) (Doc. 36). The Motion has been fully briefed and is therefore ripe for our review. (Docs. 38, 42, 43). For the reasons that follow, the Motion shall be granted.

I. BACKGROUND

On January 23, 2015, Mr. Vu was downhill skiing with his daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu was following his daughter from behind as they skied down the Lover Heavenly trail, a blue square intermediate hill, when he had his accident. (Id. at ¶¶ 24-25). Due to his injuries, Mr. Vu does not recall much detail about his accident. (Doc. 37, ¶ 11). Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. (Id. at pp. 65-66). The last thing that Mr. Vu remembered [*3] was skiing with his daughter. (Id. at p. 66).

Mr. Vu’s daughter testified: “I saw someone get really close to him and he was trying to avoid them and it was either ramming into him, the snowboarder, or person who was trying to get really close to him, or veering off path.” (Doc. 42, att. 2, p. 8). “He — there was someone trying to kind of get really close to him. And he didn’t want to ram into him. So he — I don’t really understand — know what happened. But he tried to avoid it. And there was like a big ditch or something there. And he tried to stop and tried to avoid the person who was trying to cut him off.” (Id.). “My dad was — the snowboarder was — my dad was kind of like the ham in the middle of a sandwich. Between the end of the trail, the edge of the trail and the snowboarder.” (Id. at p. 9). “I just felt that the snowboarder was getting quite close to my dad and I didn’t want a collision to happen or the snowboarder to ram into my dad.” (Id. at p. 10).

Ultimately, whether he did so intentionally or not, Mr. Vu skied off of the edge of the trail and suffered catastrophic injuries. There was a drop-off at the edge of the ski trail of about three to four feet. (Doc. 41, ¶ 32). Below that drop-off was a large pile [*4] of rocks. (Id. at ¶ 31). Mr. Vu skied off of the edge of the trail, off of the embankment, and landed on the pile of rocks. (Doc. 37, ¶ 11).

Mr. Vu was an experienced skier at the time of his accident. He had skied for over twenty years and was capable of skiing black diamond slopes. (Id. at P 6). Mr. Vu testified that he was familiar with the Skier’s Responsibility Code and understood that he was responsible for skiing in control and in such a manner that he could stop or avoid other skiers. (Id.). Mr. Vu also testified that he understood that skiing is a dangerous sport and that he could get hurt if he skied out of control or if he fell. (Id.).

On the day of his accident, Mr. Vu’s wife purchased his Liberty Mountain Resort Lift Ticket. (Id. at ¶ 18). The back of the lift ticket reads as follows:

PLEASE READ

Acceptance of this ticket constitutes a contract. The conditions of the contract are stated on this ticket & will prevent or restrict your ability to sue Liberty Mountain Resort. If you do not agree with these conditions, then do not use the facility. Snowsports in their various forms, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are [*5] not limited to: variations in snow, steepness & terrain, ice & icy conditions, moguls, rocks, trees & other forms of forest growth or debris (above or below the surface), bare spots, lift towers, utility lines & poles, fencing or lack of fencing, snowmaking & snowgrooming equipment & component parts, on-snow vehicles & other forms of natural or man-made obstacles, and terrain features on or off designated trails as well as collisions with equipment, obstacles or other snowsport participants. Trail conditions vary constantly because of weather changes and use. All the inherent and other risks involved present the risk of permanent catastrophic injury or death. In consideration of using Liberty’s facilities, the purchaser or user of this ticket agrees to accept the risks of snowsports and understands and agrees that they are hazardous and further agrees NOT TO SUE Ski Liberty Operating Corp., its owners or employees if injured while using the facilities regardless of any negligence, including gross negligence, on the part of the resort, and/or its employees or agents. The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in the sport, and agrees [*6] to report all injuries before leaving the resort . . .

(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was uncertain if he read the language on the lift ticket on the day of his accident, he testified that he had read it at some point prior to his accident. (Doc. 37, ¶ 20). At his deposition, Mr. Vu was asked to read portions of the lift ticket and he had trouble doing so because the font was too small. (Doc. 37, att. 1, p. 70).

Mr. Vu and his wife initiated this action with the filing of a complaint on October 27, 2016. (Doc. 1). Plaintiffs allege that Defendants were negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition. Defendants filed the instant motion for summary judgment on January 31, 2018. (Doc. 36).

I II. LEGAL STANDARD

Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute [*7] is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P. 56(c)(1).

A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the [*8] mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).

III. DISCUSSION

Defendants move for summary judgment on two legal bases. First, Defendants argue that Plaintiffs’ claims are barred as a matter of law because Mr. Vu’s injuries were caused by an inherent risk of skiing. Second, Defendants argue that Plaintiffs’ claims are barred by the exculpatory release language contained on the Liberty Mountain lift ticket. Because we find that Mr. Vu’s injuries arose out of risks inherent to the sport of downhill skiing, we hold that Defendants are entitled to summary judgment as a matter of law without even considering the exculpatory release language of the lift ticket.

The material facts surrounding Mr. Vu’s accident are not in dispute. Though Mr. Vu and his daughter are unclear on the specifics, it is undisputed that Mr. Vu ended up skiing off of the trail, over a drop-off, and into a pile of rocks. (Doc. 37, ¶ 11). Mr. Vu testified that a snowboarder was getting too close to him and his “knee-jerk” reaction was to veer to avoid a collision, causing him [*9] to ski off of the trail and over the embankment. (Doc. 37, att. 1, pp. 65-66). Mr. Vu’s daughter also testified that her father’s accident occurred when he tried to avoid a collision with a snowboarder. (Doc. 42, att. 2, p. 8). While Defendants argumentatively refer to this person as the “phantom snowboarder” and question the credibility of the testimony, for purposes of this Motion we can take Plaintiffs’ facts as true and assume that Mr. Vu skied off of the trail, either intentionally or as a result of a knee-jerk reaction, to avoid colliding with a snowboarder. Even so, summary judgment must be granted in favor of the Defendants because Mr. Vu’s accident occurred as a result of inherent risks of downhill skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing.” 42 Pa. C.S. § 7102(c). As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a [*10] place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.

In Hughes v. Seven Springs Farm, Inc., the Supreme Court of Pennsylvania established a two-part test for courts to use to determine whether a plaintiff’s claims are barred by the no duty rule of the Skier’s Responsibility Act. 762 A.2d 339, 343 (2000). “First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” Id. at 344. “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of downhill skiing.” Id. If so, then summary judgment must be awarded against the plaintiff as a matter of law. Id. In the case at-bar, there can be no dispute that Mr. Vu was engaged in the sport of downhill skiing at the time of his accident. The salient question, therefore, becomes whether veering off-trail and over a drop-off into a pile [*11] of rocks to avoid a collision with a snowboarder are inherent risks of downhill skiing. If those risks are inherent to skiing, then Defendants had no duty to protect Mr. Vu. Chepkevich, 2 A.3d at 1186. If those risks are not inherent, traditional principles of negligence apply and we must determine what duty the Defendants owed Mr. Vu, whether the Defendants breached that duty, and whether the breach caused Mr. Vu’s injuries.

We begin with a discussion of what it means for a risk to be “inherent.” The Hughes court explained that “inherent” risks are those that are “common, frequent, and expected” in downhill skiing. Id. In interpreting risks, the Supreme Court of Pennsylvania has instructed that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Chepkevich, 2 A.3d at 1187-88. “Accordingly, courts have rejected attempts by plaintiffs to define the injury producing risks in very a specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017) (Mariani, J.). For example, the Supreme Court of Pennsylvania in Chepkevich rejected the plaintiff’s argument that she did not assume the “specific [*12] risk” involved, looking instead to the “general risk” that gave rise to the accident. 2 A.3d at 1188. A number of courts have addressed the scope of the Skier’s Responsibility Act and have concluded that some of the inherent risks of downhill skiing include: lack of netting, improper course plotting, or soft snow1; skiing off trail and striking a tree2; collisions with unpadded snow equipment poles3; striking a fence on the edge of the trail4; and collisions with other skiers or snowboarders.5

1 Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir. 2008).

2 Id.

3 Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983).

4 Cole, 2017 WL 4621786, at *5.

5 Hughes, 762 A.2d 339.

Before addressing the risks that Mr. Vu encountered, we must address Plaintiffs’ initial argument that the assumption of the risk doctrine is inapplicable. Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8) (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply. (Id. at pp. 9-13). For support of this argument, Plaintiffs cite several cases that are materially distinct from the case at-bar. First, Plaintiffs [*13] quote Barillari v. Ski Shawnee, Inc., “[i]t is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks.” 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013). Importantly, the court made this statement when analyzing the doctrine of voluntary assumption of the risk after determining that the Skier’s Responsibility Act was not applicable because the plaintiff was not engaged in the sport of downhill skiing at the time of the accident. Id. at 561. The instruction of this quote is inapplicable to our consideration of the no duty doctrine of assumption of the risk.

Next, Plaintiffs rely heavily on Bolyard v. Wallenpaupack Lake Estates, Inc., 2012 WL 629391(M.D. Pa. Feb. 27, 2012) (Caputo, J.). In Bolyard, the plaintiff sued the defendant for negligence after sustaining injuries while snow tubing on the defendant’s property. Id. at *1. The court recognized that while the plaintiff had “general knowledge” of the dangers of snow tubing on the hill, she did not assume the risk because “there is no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Id. at *6. Plaintiffs argue that “[s]imilar to the patron in Bolyard,” Mr. Vu was only generally aware of the risks he could suffer while skiing and thus assumption of the risk is inapplicable. (Doc. [*14] 42, p. 8). We disagree.

Notably, the slope in Bolyard was an old slope that was not currently in operation. 2012 WL 629391, at *1. The court used principles of negligence as applicable to landowners and licensees to determine the duty owed to the plaintiff and, consequently, considered the doctrine of voluntary assumption of the risk as a defense. Id. at **3-6. Analyzing the present action under the no duty rule, we do not consider the defense of voluntary assumption of the risk; instead, we must determine whether Mr. Vu’s injuries arose out of an inherent risk of the sport of skiing such that the Defendants had no duty at all. Pursuant to Hughes and the Skier’s Responsibility Act, there is no duty to protect a skier from the inherent risks of skiing and therefore, “when inherent risks are involved, negligence principles are irrelevant.” Id.

Finally, Plaintiffs cite Perez v. Great Wolf Lodge of the Poconos LLC,6
Staub v. Toy Factory, Inc.,
7
Jones v. Three Rivers Mgmt. Corp,
8 and Telega v. Sec. Bureau, Inc.9 in support of their position that assumption of the risk does not apply because Mr. Vu did not appreciate the specific risks that caused his accident. To start, none of these cases address the Skier’s Responsibility [*15] Act. These cases discuss appreciation of specific risk only after determining that the no duty rule was inapplicable because the risk encountered was not inherent. Again, we reiterate that “[n]egligence principles are irrelevant where the ‘no duty’ rule applies.” Lin v. Spring Mountain Adventures, Inc., 2010 WL 5257648, at *7 (E.D. Pa. Dec. 23, 2010). Whether the no duty rule applies turns on whether Mr. Vu’s particular injuries arose out of risks inherent in the sport of skiing — an issue that is not dependent on a plaintiff’s subjective awareness of those specific risks.

6 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (Mariani, J.).

7 749 A.2d 522, (Pa. Super. 2000).

8 483 Pa. 75, 85, 394 A.2d 546, 551 (1978).

9 719 A.2d 372, 376 (Pa. Super. Ct. 1998).

We now turn to the risks involved in Mr. Vu’s accident. The facts reveal two circumstances that gave rise to Mr. Vu’s injuries: (1) veering to avoid a collision with a snowboarder; and (2) skiing over the drop-off at the edge of the trail and into a pile of rocks. If these risks are inherent to the sport of downhill skiing, Plaintiffs’ claims cannot stand.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with another skier is one of the common, frequent and expected [*16] risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Hughes, 762 A.2d at 344. Likely in recognition of the clear case law, Plaintiffs do not argue in their brief in opposition to the Motion that avoiding a collision with a snowboarder is a risk that would give rise to a duty on behalf of Defendants. To the extent that Plaintiffs’ claims of negligence are premised on Mr. Vu’s avoidance of a collision with the snowboarder, those claims must fail.

Next, we consider whether skiing over the edge of the trail and encountering a three to four foot drop-off into a pile of rocks is an inherent risk of downhill skiing. Plaintiffs frame this risk as the primary cause of Mr. Vu’s injuries.10 “Simply put, the risk of ejectment from a ski trail due to a 3 to 4 foot drop off and striking one’s head on rocks and/or boulders . . . is not an inherent, frequent, common, and expected risk of skiing.” (Doc. 42, p. 11). All parties recognize that the drop-off was at the edge of the trail rather than a ditch or hole in the slope itself. Though Plaintiffs stress that Mr. Vu did not “willingly [*17] decide to ski off trail,” the distinction is of no consequence. Plaintiffs describe the incident in terms of Mr. Vu being “ejected” from the trail due to the embankment, but it is illogical to argue that the existence of the drop-off itself would cause a skier to go over it. Whether Mr. Vu did so intentionally, accidentally, or as a means of avoiding a collision, the incontrovertible fact is that Mr. Vu did, ultimately, ski off of the three to four foot edge of the trail.

10 “. . . the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8); “Even if Defendant could establish that having a 3 to 4 foot trail edge drop presents a danger inherent to the sport of skiing . . .” (Id. at p. 9); “. . . he was ejected from the trail when attempting to avoid a collision and was confronted with a 3 to 4 foot drop in elevation from the ski trail.” (Id. at p. 11).

We hold that the risk of skiing off trail and suffering from the change of elevation between the trail and surrounding terrain is an inherent risk of downhill skiing. Mr. Vu was an experienced skier who was well aware of the risks of skiing off the designated slope; he testified repeatedly that he “would never ski off-trail.” (Doc. 41, att. 1, p. 43). He had previously skied at Liberty Mountain on multiple occasions and could not remember ever complaining about the trail or trail markings. (Id. at pp. 35-36). Additionally, Mr. Vu’s daughter testified that she did not have any difficulty discerning the edge of the slope where her father went off trail the evening of the accident. (Doc. 41, att. 2, p. 14). It would be irrational for [*18] any court to hold that skiing off trail and encountering dangerous terrain is not an inherent risk of the sport of downhill skiing — ski slopes are marked and maintained in appreciation of this risk, and beginner and experienced skiers alike know to stay within the trail limits to avoid injury. Mr. Vu himself testified that he understood that he could run into trees, rocks, boulders, or snowmaking equipment if he skied off trail. (Doc. 37, att. 1, p. 71).

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis. One case from the New York appellate court, however, was particularly analogous. In Atwell v. State, the plaintiff was skiing near the edge of the trail when he observed a “floundering” skier in his path. 645 N.Y.S.2d 658, 659 (1996). Plaintiff “instinctively reacted and turned without thinking” to avoid a collision and ended up skiing off trail and into a tree. Id. The court easily found that plaintiff’s injuries were due to inherent risks of skiing. Id. at 650. “[F]rom claimant’s own description of the accident, there can be no dispute that everything he encountered, including the skier he turned [*19] to avoid hitting, the berm at the edge of the trail referred to by claimant’s expert and the tree with which he collided, are all statutorily recognized as inherent dangers of skiing.” The court noted that “[c]laimant chose to ski near the edge of the trail and there is nothing in the record to indicate that the location of the edge of the trail was not readily observable to him.” Id. Similarly here, Mr. Vu was an experienced skier who chose to ski near the edge of the slope. He had a knee-jerk reaction to avoid a skier, and ended up veering off of the trail and suffering from the elevation change and his collision with rocks. Not only is there a lack of any evidence that the edge of the trail was difficult to discern, but Mr. Vu’s daughter testified at length about how her father was close to the edge of the trail and specifically stated that she could observe the edge of the slope without difficulty. (Doc. 41, att. 2, p. 14).

We agree with the Supreme Court of New Hampshire, which simply held: “Even the most generous reading of the plaintiff’s pleadings reveals the chief cause of his injuries to be an unenumerated, yet quintessential risk of skiing: that a skier might lose control [*20] and ski off the trail. By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.” Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 684, 671 A.2d 548, 553 (1996).

IV. CONCLUSION

For the foregoing reasons, the Motion shall be granted. A separate order shall issue in accordance with this memorandum.

ORDER

Presently before the Court is Defendants’ motion for summary judgment. (Doc. 36). In conformity with the Memorandum issued on today’s date, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion for summary judgment (Doc. 36) is GRANTED.

2. The Clerk of the Court SHALL CLOSE the file on this case.

/s/ John E. Jones III

John E. Jones III

United States District Judge


The New York Court found the injuries received by the Plaintiff, there was an inference that the collision was violent.

Snowboarder standing at the base of the hill talking was injured when a skier struck here when he could not stop.

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

State: New York; Supreme Court of New York, Appellate Division, First Department

Plaintiff: Keri Horowitz

Defendant: Ethan Chen

Plaintiff Claims: Negligence

Defendant Defenses: Inherent Risk

Holding: For the Plaintiff

Year: 2016

Summary

The entire case resolves around two issues. The inherent risks of skiing do not include standing at the bottom of the hill and getting hit when just talking and the plaintiff’s injuries were so bad; she was obviously hit by the defendant at a high rate of speed.

Facts

The facts are best described by the court.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably in-creased risk

Analysis: making sense of the law based on these facts.

A very simple case. When a skier is skiing out of control at a high rate of speed in the beginner area and knows he has limited ability to stop, is he liable if he hits someone standing in the beginner area. This court said yes.

Collisions are an inherent risk of skiing in New York. However, as here, the collision could not be expected. The plaintiff was not skiing, was barely “on the slope” and was still hit by a skier.

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.

The court found that those factors possibly gave rise to reckless conduct. Reckless conduct is not an inherent risk of skiing.

The supporting statement the court made about reckless conduct is interesting. The court found the injuries the plaintiff received could also infer the plaintiff was skiing recklessly.

Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.

Rarely are the injuries to the plaintiff ruled as indicative of something other than the injuries the plaintiff received unless an expert opines that the injuries could only have occurred by something specific happening. Meaning an expert witness is required to say that an injury that bad meant the defendant was traveling so fast.

So Now What?

It’s really hard to argue with this decision. When you get to the bottom of the hill, you should be slowing down and under control. Here the defendant was not doing either and hit the plaintiff. No one skiing could expect to be hit when standing at the bottom of the ski area. Consequently, a collision like that is not an inherent risk of skiing.

What do you think? Leave a comment.

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Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Keri Horowitz, Respondent, v Ethan Chen, Appellant.

1649, 152242/14

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

July 5, 2016

July 5, 2016, Entered

PRIOR HISTORY: Horowitz v Chen, 2015 N.Y. Misc. LEXIS 4314, 2015 NY Slip Op 32238(U) (N.Y. Sup. Ct., Nov. 20, 2015)

CORE TERMS: skiing, reckless conduct, snowboarding, reckless, beginner’s, slope, speed

HEADNOTES

Negligence–Assumption of Risk–Skiing and Snowboarding Accident–Possibility of Reckless Conduct by Defendant

COUNSEL: [***1] Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellant.

Gersowitz Libo & Korek, P.C., New York (Michael Chessa of counsel), for respondent.

JUDGES: Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ.

OPINION

[*410] [**61] Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 24, 2015, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” (Pantalone v Talcott, 52 AD3d 1148, 1149, 861 NYS2d 166 [3d Dept 2008]).

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the [***2] significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances (see Moore v Hoffman, 114 AD3d 1265, 980 NYS2d 684 [4th Dept 2014]). Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ. [Prior Case History: 2015 NY Slip Op 32238(U).]