This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).

A negligence per se claim can be stopped if the plaintiff assumed the risk under California law. This is probably a rare look at negligence per se in the fifty states.

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

State: California, Court of Appeal of California, Second Appellate District, Division Five

Plaintiff: Christian Moser

Defendant: Joanne Ratinoff

Plaintiff Claims: negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with the defendant.

Defendant Defenses: Primary Assumption of the Risk and Secondary Assumption of the Risk

Holding: for the defendant

Year: 2003

The plaintiff and the defendant participated in an “organized long-distance bicycle ride on public highways involving hundreds of participants.” The ride, the Death Valley Double Century was a 200-mile ride (double century). During the ride, the defendant swerved from the right side along the curb to the left into the plaintiff causing a collision. The plaintiff suffered injuries.

Prior to the ride, both participants signed releases. The releases explained several of the risks of the activity, but did not protect participants from claims of other participants. “The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

The case was dismissed at the trial court level because collisions are an inherent risk of cycling. The plaintiff appealed.

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

The court first looked at the requirements for the defendant to prove assumption of the risk by motion.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Under California law, a participant is generally responsible for their own injuries caused by the ordinary care or skill of another.

The court then looked at whether the plaintiff expressly assumed the risk of his injuries.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Express assumption of the risk is usually considered a written assumption of the risk. The court set out the definitions that must be met to prove express assumption of the risk in California.

The doctrine of express assumption of the risk is founded on express agreement. ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement. . . .’ That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world.

The court found that express assumption of the risk could not be applied to this case, as the defendants failed to prove that she was entitled to use the release signed by both parties before entering the race. However, the court found there could still be some value to the defendant from the release. “A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk.”

The court then looked at implied assumption of the risk, also known as secondary assumption of the risk, and whether it could be proved in this case. Under California law, implied assumption of the risk “embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”

Implied assumption of the risk was defined by the California Supreme Court as:

…a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.”

The reasoning for this is to impose a duty would place a chill on most sporting activities so that participants would not vigorously compete.

The test for implied assumption of the risk is not whether the defendant must protect the plaintiff from a known risk, but the nature of the activity.

The court then looked to determine if prior decisions had applied the defense of implied assumption of the risk to “organized non-competitive recreational bicycle riding.” However, the court did find that the risks and other factors made this type of cycling the same as other sports that implied assumption of the risk had been applied too by other California courts.

Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court said upon “[c]ompiling all of the distinguishing factors” from the cases,  an activity is a “sport” to which the primary assumption of risk doctrine applies if that activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

The court also found that although bicycles are vehicles under California law, this type of activity was not the same as driving a car. This was done for enjoyment and physical activity.

However, the assumption of risk is not a blanket defense to all claims.

The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’

Defendants have no legal duty to eliminate the risk or protect a plaintiff to the risks inherent in a sport. The next issue becomes what then are the inherent risks of a sport.

Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence.

The court then gave examples of non-inherent risks and inherent risks in sports as determined by other California courts.

Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

The court then found that two riders riding side by side, a collision between the two, or one rider riding into the other was an inherent risk of cycling.

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity.

The defendant in this case the court determined was negligent, but was not wanton or reckless or conduct so totally outside of the range of ordinary activity involved in cycling.

The final issue the court looked at is whether the claim of negligence per se is barred by express or implied assumption of the risk. Court looked at precedent, prior case law, to determine the issue and found none. There were several California Supreme Court decisions that looked at the issue but did not rule on it. On the court today, this court determined from those prior decisions that a majority, four, of the justices on the court would argue that a negligence per se claim is blocked by express assumption of the risk. “Nevertheless, a majority of the present California Supreme courts have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.”

The court upheld the ruling of the trial court, and the case was dismissed.

So Now What?

First do not assume that assumption of the risk, in any form can bar a negligence per se claim. There are several states were this would not be true.

Second, the court’s analysis of the facts and the law are easily understood and supported by the case law quoted. This is a great case to understand the two types of assumption of the risk allowed in California.

Finally, in California of two or more people riding together is that one of those people assumes the inherent risk of colliding with the other.

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Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Christian Moser, Plaintiff and Appellant, v. Joanne Ratinoff, Defendant and Respondent.

No. B153258.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE

January 31, 2003, Decided

January 31, 2003, Filed

CALIFORNIA OFFICIAL REPORTS SUMMARY A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

The Court of Appeal affirmed. It held that a waiver, signed by plaintiff prior to participating in the ride, that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants, did not inure to the benefit of defendant. However, the court held, the primary assumption of the risk doctrine was applicable. Organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. The court also held that the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the doctrine. (Opinion by Mosk, J., with Turner, P.J., and Grignon, J., concurring.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1) Summary Judgment § 26–Appellate Review–Scope of Review. — –A grant of summary judgment is reviewed de novo. The appellate court makes an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. Under Code Civ. Proc., § 437c, subd. (p)(2), a defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action.

(2) Negligence § 98–Actions–Trial and Judgment–Questions of Law and Fact–Assumption of Risk–Summary Judgment. — –When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains. Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.

(3) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk. — –A defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk.

(4) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect of Express Waiver. — –A participant in an organized, long-distance bicycle ride on public highways did not assume the risk of negligence by a coparticipant in the ride by signing, prior to taking part in the ride, a waiver that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants. An express assumption of risk agreement does not inure to the benefit of those not parties to that agreement.

(5) Negligence § 37–Exercise of Care by Particular persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect. — –The doctrine of primary assumption of the risk embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. Where the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.

(6) Negligence § 37–Exercise of Care by Particular Persons-Exercise of Care by Plaintiff–Assumption of Risk–Competitive Sports. — –Under the doctrine of primary assumption of risk, a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. Whether the doctrine applies depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of the doctrine is to avoid imposing a duty that might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.

(7) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Analytical Frameword. — –In assumption of the risk analysis, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.

(8a) (8b) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Orgainzed Bicycle Ride. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the trial court properly granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. Such organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. Defendant’s movements may have been negligent, but they were not intentional, wanton, or reckless, nor were they totally outside the range of ordinary activity involved in the sport. Thus, the accident was within the risks assumed by plaintiff and defendant when they chose to participate.

[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090C.]

(9) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Risks Not Assumed. — –Even if an activity is one to which the primary assumption of the risk doctrine applies, there are certain risks that are deemed not assumed and certain injury-causing actions that are not considered assumed risks of the activity. An activity that is not inherent in the sport is not subject to the doctrine. Drinking alcoholic beverages, for example, is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, and proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

(10) Negligence § 40–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Violation of Safety Law–Vehicle Code Provisions Applicable to Bicycle Riding. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the primary assumption of the risk doctrine. The doctrine is not displaced by a violation of a statute that does not evince legislative intent to eliminate the assumption of the risk defense.

COUNSEL: Law Offices of Michael L. Oran, Michael L. Oran, Kathy B. Seuthe; Law Offices of Garry S. Malin and Garry S. Malin for Plaintiff and Appellant.

Barry Bartholomew & Associates, Michael A. Nork and Kathryn Albarian for Defendant and Respondent.

JUDGES: (Opinion by Mosk, J., with Turner, P. J., and Grignon, J., concurring.)

OPINION BY: MOSK

OPINION

[*1214] [**200] MOSK, J.

Plaintiff and appellant Christian Moser (Moser) and defendant and respondent Joanne Ratinoff (Ratinoff) participated in an organized, long-distance bicycle ride on public highways involving hundreds of participants. Moser signed an “Accident Waiver and Release of Liability” form for the benefit of the event holders, sponsors and organizers in which Moser expressly assumed the risk of various injuries, including those caused by other participants. During the ride, Ratinoff swerved into Moser, causing him to crash and sustain injuries. Moser sued Ratinoff for general negligence. Ratinoff filed a motion for summary judgment on the ground that a collision between bicycle riders was an inherent risk in the ride, and [*1215] therefore the action was barred by [***2] the primary assumption of risk doctrine enunciated in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight). Moser opposed the motion on the grounds that the primary assumption of risk doctrine did not apply because the collision was not an inherent risk of the activity and because Ratinoff’s violation of provisions of the California Vehicle Code precluded application of the doctrine. The trial court granted summary judgment in Ratinoff’s favor. We hold that the primary assumption of risk doctrine applies to the organized bicycle ride, and that a violation of a statute does not displace that doctrine. Accordingly, we affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND 1

1 We state the facts in accordance with the standard of review stated post.

Moser and Ratinoff collide during a bicycle ride

In February 1999, Moser registered to participate in the Death Valley Double Century bicycle ride, a 200-mile, noncompetitive bicycle ride on public [***3] highways. Hugh Murphy Productions organized the ride in which approximately 600 bicycle riders participated. 2 Before participating in the ride, Moser signed a document provided by the organizers entitled “Accident Waiver and Release of Liability” (the release), releasing the organizers and stating, “I acknowledge that this athletic event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to those caused by . . . actions of other people including but not limited to participants. . . . I hereby assume all of the risks of participating &/or volunteering in this event.” The organizer required riders to wear helmets and to have bicycle lights.

2 One of the forms refers to the promoter as “Badwater Adventure Sports.”

The ride had no designated start time. On the day of the accident, Moser and his friend, David Warshawsky (Warshawsky), began the ride at 4:00 a.m. At a rest stop, [***4] Moser and Warshawsky encountered Ratinoff, another participant in the ride. The three cyclists left the rest stop together, with Warshawsky and Ratinoff riding side-by-side and Moser riding behind them. At some point, they began riding single file.

Moser was cycling close to the right-hand side of the road. Ratinoff said that she came from behind Moser’s left side and passed him or rode at his left side. Moser said Ratinoff came up from behind him and rode next to him on his left side. While she was riding on Moser’s left side, an Inyo County Sheriff’s Deputy pulled his car approximately four or five car lengths behind [*1216] them and stayed there for several minutes. Ratinoff turned to look at the [**201] police car, and she then told Moser, “I have to come over.” According to Ratinoff, a “split second” later, she moved to her right toward Moser.

As Ratinoff moved to her right, she made contact with Moser, who nevertheless was able to retain control of his bicycle. Within seconds, Ratinoff again collided with Moser, causing him to fall off his bike and to sustain injuries. At the time of the collision, Ratinoff and Moser were riding at an approximate speed of 15 to 20 miles per hour.

Moser [***5] sues Ratinoff, and Ratinoff files a motion for summary judgment

Moser commenced an action against Ratinoff and in his complaint alleged that Ratinoff “negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with” Moser’s bicycle. Ratinoff alleged assumption of risk as an affirmative defense.

Ratinoff filed a motion for summary judgment in which she contended that she was not liable to Moser because under the primary assumption of risk doctrine she did not breach a duty of care owed to him. Moser, in opposition to the motion, argued that the primary assumption of risk doctrine does not apply to noncompetitive bicycle riding and that Ratinoff violated Vehicle Code sections 21202, subdivision (a) (operating a bicycle as close “as practicable to the right-hand curb or edge of the roadway”), and 22107 (moving a vehicle to the left or right “with reasonable safety”), thereby giving rise to a presumption of negligence and rendering the primary assumption of risk doctrine inapplicable.

The trial court granted the summary judgment motion and entered judgment against Moser. The trial court denied Moser’s motion [***6] for new trial. Moser does not raise the denial of his new trial motion as a basis for his appeal.

STANDARD OF REVIEW

(1) [HN1] We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal. Rptr. 2d 356].) We make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal. Rptr. 2d 35].) A defendant moving for summary judgment meets its burden of showing that [*1217] there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal. Rptr. 2d 841, 24 P.3d 493].) [***7] (2))

[HN2] “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395 [36 Cal. Rptr. 2d 418].) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight, supra, 3 Cal.4th at p. 313; Record v. Reason (1999) 73 Cal.App.4th 472, 479 [86 Cal. Rptr. 2d 547].) [**202]

DISCUSSION

[HN3] A person is generally responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Civ. Code, § 1714.(3)) But a defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk. (Knight, supra, 3 Cal.4th at pp. 308, fn. 4, 309-321.)

I. Express assumption of risk

Before reaching the issue of implied assumption of risk, we must determine if Moser expressly assumed the risk of a collision based [***8] on the release he signed. [HN4] An express assumption of risk is a complete defense to a negligence claim. (Knight, supra, 3 Cal.4th at p. 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 [59 Cal. Rptr. 2d 813]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012 [54 Cal. Rptr. 2d 330].) Moser released the “event holders, sponsors and organizers,” and also acknowledged the risks of the ride, including those caused by other participants. The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal. Rptr. 2d 781] (Westlye), the plaintiff, who was injured skiing, filed an action against the ski shop from which he rented allegedly defective ski [*1218] equipment and the distributors of the equipment. He had signed a written agreement with the ski shop in which he accepted the equipment for use “as is”; agreed that he understood that there ” ‘are no guarantee[s] for the user’s safety’ “; acknowledged that there is ” ‘an inherent risk of injury in the sport of skiing, and the use of any ski equipment, and expressly assume[d] the risks for any [***9] damages to any persons or property resulting from the use of this equipment’ “; and released the ski shop from any liability. (Id. at p. 1725.)

The distributors of the equipment contended that “as a matter of law an express assumption of risk is good as against the whole world” and therefore precluded any liability against the distributors. (Westlye, supra, 17 Cal.App.4th at p. 1729.) In holding that the plaintiff had not released the distributors of the equipment, the court said, “defendants fail to submit, and we have not discovered, any authority for [the distributors’] proposition. The doctrine of express assumption of the risk is founded on express agreement. [Citations.] ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ [Citations.] Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect [***10] to the risks encompassed by the agreement. . . .’ [Citation.] That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world. [P] . . . [P] We conclude the distributor defendants have failed to establish that they are entitled to the benefit of the written agreement between plaintiff and [the ski shop].” (Id. at pp. 1729-1730.)(4))

Westlye, supra, 17 Cal.App.4th 1715, states the existing law that [HN5] an express assumption of risk agreement does not inure to the benefit of those not parties to that agreement. Accordingly, [**203] Moser did not expressly assume the risk of negligence by a coparticipant in the ride. A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk. (See discussion post.)

II. Implied assumption of risk

The subject of implied assumption of risk has generated much judicial attention. Its modern history began when California eliminated contributory negligence and adopted a comparative negligence system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226].. [***11] [*1219] Thereafter, the California Supreme Court–in two companion cases, Knight, supra, 3 Cal.4th 296, and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724] (Ford)–considered the “proper application of the ‘assumption of risk’ doctrine in light of [the] court’s adoption of comparative fault principles.” (Knight, supra, 3 Cal.4th at p. 300.) (5))

In Knight, supra, 3 Cal.4th 296, the Supreme Court, in a plurality opinion, set forth the doctrine of primary assumption of the risk. That doctrine, which is now established as “the controlling law” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 [68 Cal. Rptr. 2d 859, 946 P.2d 817] (Cheong)), “embodies a legal conclusion that [HN6] there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk. . . .” (Knight, supra, 3 Cal.4th at p. 308.) When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability. (Ibid.) 3

3 But see the Restatement Third of Torts, section 2 and comment i, pages 19, 25 (“Most courts have abandoned implied assumptions of risk as an absolute bar to a plaintiff’s recovery”).

[***12] (6) In Knight, supra, 3 Cal.4th 296, the court concluded that a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” (Id. at p. 316.) In Ford, the court applied the rule to noncompetitive, non-team-sporting activities–in that case waterskiing. (Ford, supra, 3 Cal.4th 339.)

[HN7] Whether the primary assumption of risk doctrine applies–which issue is, as noted above, a question of law–“depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.” (Knight, supra, 3 Cal.4th at p. 313.) “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated [***13] activity and thereby alter its fundamental nature.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253 [38 Cal. Rptr. 2d 65].)

III. Activity subject to primary assumption of risk

(7) In Knight, supra, 3 Cal.4th at page 309, the court said that “whether the defendant owed a legal duty to protect the plaintiff from a [**204] particular risk [*1220] of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” The court suggested that generally, the primary assumption of risk doctrine applies in a “sports setting.” (Id. at pp. 309-310, fn. 5.) (8a)) Thus, the issue in the instant case is whether an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies.

The court in Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635 [53 Cal. Rptr. 2d 657], stated, “Knight may require a court to determine a question of duty in sports settings while factually uninformed of how the sport is [***14] played and the precise nature of its inherent risks.” To make a decision concerning duty we must know the nature of a particular sport, and even if we do have such knowledge, we still may have no idea how imposing liability will affect or “chill” the sport–which is a major factor in making a determination of duty. (See American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [93 Cal. Rptr. 2d 683] [court said “expert opinion may inform the court on these questions”].) Nevertheless, under the current state of the law established by Knight, we must somehow make such a determination.

As guidance, there are cases in which courts have determined whether or not the primary assumption of risk applies to a particular activity. There are a number of cases involving sports activities in which the court found a primary assumption of risk. (Cheong, supra, 16 Cal.4th 1063 [snow skiing]; Ford, supra, 3 Cal.4th 339 [waterskiing]; Knight, supra, 3 Cal.4th 296 [touch football]; Sanchez v. Hillerich & Bradsby (2002) 104 Cal.App.4th 703 [128 Cal. Rptr. 2d 529] [collegiate baseball]; Distefano v. Forester (2001) 85 Cal.App.4th 1249 [102 Cal. Rptr. 2d 813] [***15] (Distefano) [off-roading]; Calhoon v. Lewis (2000) 81 Cal.App.4th 108 [96 Cal. Rptr. 2d 394] [skateboarding]; American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th 30 [golf]; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428 [89 Cal. Rptr. 2d 920] [lifeguard training]; Record v. Reason, supra, 73 Cal.App.4th 472 [tubing behind a motorboat]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939 [80 Cal. Rptr. 2d 638] [wrestling]; Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal. Rptr. 2d 801] [gymnastics stunt during cheerleading]; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47 [72 Cal. Rptr. 2d 337] [little league baseball]; Domenghini v. Evans (1998) 61 Cal.App.4th 118 [70 Cal. Rptr. 2d 917] [cattle roundup]; Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551 [68 Cal. Rptr. 2d 58] [sport fishing]; Staten v. Superior Court, supra, 45 Cal.App.4th 1628 [ice skating]; [*1221] Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430 [52 Cal. Rptr. 2d 812] [football practice drill]; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525 [50 Cal. Rptr. 2d 671] [***16] [judo]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040 [48 Cal. Rptr. 2d 922] [rock climbing]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th 248 [river rafting]; O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 [35 Cal. Rptr. 2d 467] [snow skiing]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670] [sailing].) In some other recreational activities, [**205] courts have held that there was no primary assumption of risk. (Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217] [boating passenger]; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 [21 Cal. Rptr. 2d 178] [recreational dancing].)

We have found no case that considers primary assumption of risk in connection with organized, noncompetitive, recreational bicycle riding. Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court in Record v. Reason, supra, 73 Cal.App.4th at page 482, said upon “[c]ompiling all of the distinguishing factors” from the cases, [HN8] an activity is a “sport” to which the primary assumption of risk doctrine applies if that [***17] activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

It is true that bicycle riding is a means of transportation–as is automobile driving. Normal automobile driving, which obviously is not an activity covered by the assumption of risk doctrine, requires skill, can be done for enjoyment, and entails risks of injury. But [HN9] organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. 4 Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge. Moser acknowledged in the release he signed that the activity is “an athletic event that is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss.” In view of these considerations, the organized, long-distance, group bicycle ride qualifies [***18] as a “sport” for purposes of the application of the primary assumption of risk doctrine.

4 We express no opinion as to such other forms of recreational bicycle riding.

IV. Inherent risk

(9) [HN10] Even if the activity is one to which the primary assumption of risk applies, there are certain risks that are deemed not assumed, and certain [*1222] injury-causing actions that are not considered assumed risks of the activity. The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood [***19] of injury above that which is inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827 [89 Cal. Rptr. 2d 519].) Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1394.) A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so [**206] reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence. (Knight, supra, 3 Cal.4th at pp. 320-321.)

[HN11] Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1388.) On the other hand, in various sports, going too fast, [***20] making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. (See Cheong, supra, 16 Cal.4th 1063; Distefano, supra, 85 Cal. App. 4th 1249; Record v. Reason, supra, 73 Cal.App.4th 472.)(8b))

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. 5 The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity. If liability attached to entanglements and collisions among 600 bicycle riders, the recreational sport of an organized bicycle ride likely would be adversely affected.

5 Compare Mark v. Moser (Ind. Ct.App. 2001) 746 N.E.2d 410 (inherent risk in a competitive cycling race is that a competitor may attempt to cut in front of a coparticipant to advance position).

[***21] Ratinoff’s movements toward the right side of the road that caused her to collide with Moser may have been negligent, but they were not intentional, [*1223] wanton or reckless or conduct “totally outside the range of ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at pp. 320-321.) Therefore, the accident at issue in this case is within the assumed risks of the organized bicycle ride in which Moser and Ratinoff were engaged. 6

6 There are traffic-related risks that might not be considered inherent in the activity involved here, such as those involving automobile negligence. (See Story v. Howes (N.Y. App. Div. 1973) 41 A.D.2d 925 [344 N.Y.S.2d 10] [“mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car”]; Bell v. Chawkins (Tenn. Ct.App. 1970) 62 Tenn. App. 213 [460 S.W.2d 850] [bicyclist did not assume risk dog would bite her].)

V. Effect of statute

Moser asserts that the primary [***22] assumption of risk doctrine does not bar a claim when, as here, Ratinoff has violated statutes.

A. Pleading requirement

Moser’s failure to allege in his complaint that defendant’s conduct violated any statutory duties owed to plaintiff would, under Distefano, supra, 85 Cal. App. 4th at page 1266, procedurally bar plaintiff from raising the effect of a statutory violation in opposing a motion for summary judgment. Although this holding in Distefano appears inconsistent with long-standing authority that a plaintiff’s allegations of negligence include statutory violations that constitute negligence per se (Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 680 [255 P.2d 802]; Karl v. C. A. Reed Lumber Co. (1969) 275 Cal. App. 2d 358, 361-362 [79 Cal. Rptr. 852]), we need not determine this procedural issue because of our conclusion that the statutory violations do not, under present [**207] law, preclude the assumption of risk doctrine.

B. Statutory violations do not displace the Knight rule

(10) Moser contends that defendant’s violations of various Vehicle Code sections constitute negligence per se, and thus preclude the application [***23] of the primary assumption of risk doctrine. The California Supreme Court has addressed this issue in two cases–Ford, supra, 3 Cal.4th 339, and Cheong, supra, 16 Cal.4th 1063–and has produced a number of opinions, leading one court to say “there appears to be no clear consensus on the high court about this issue.” (Campbell v. Derylo, supra, 75 Cal.App.4th at p. 829, fn. 3.) Nevertheless, a majority of the present California Supreme Court have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.

[*1224] The lead opinion in Ford, supra, 3 Cal. 4th 339, which case involved a waterskiing accident, dealt with whether Harbors and Navigation Code section 658, subdivision (d), 7 coupled with the negligence per se doctrine (as codified in Evid. Code, § 669), 8 established a rebuttable presumption that the defendant breached his duty of care to the plaintiff. That opinion concluded that the violation of Harbors and Navigation Code section 658 was inapplicable because the plaintiff [***24] did not fall within the statute’s protected class. (Id. 3 Cal.4th at p. 350.) Three of the justices found that the plaintiff was within the class of persons Harbors and Navigation Code section 658 was intended to protect, and therefore, under Evidence Code section 669, the defendant violated a legal duty of care to the plaintiff. (Id. at pp. 364-369 (conc. & dis. opn. of George, J.); id. at p. 369 (dis. opn. of Mosk, J.).) 9 Three other justices who had disagreed with the Knight plurality opinion and would have “adhere[d] to the traditional consent approach” to assumption of risk (id. at p. 351, fn. 1 (conc. opn. of Kennard, J.)), stated that the statute is not “the type of safety enactment that would preclude defendant . . . from asserting assumption of risk as a defense barring plaintiff . . . from recovering damages in his negligence action.” (Id. at p. 363 (conc. opn. of Kennard, J.).)

7 Harbors and Navigation Code section 658 provides that no person shall operate a vessel so as to cause, among other things, water skis to collide with any object or person.

[***25]

8 Evidence Code section 669, subdivision (a), provides: “The failure of a person to exercise due care is presumed if: [P] (1) He violated a statute, ordinance, or regulation of a public entity; [P] (2) The violation proximately caused death or injury to person or property; [P] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [P] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (See also Vesely v. Sager (1971) 5 Cal.3d 153, 164-165 [95 Cal. Rptr. 623, 486 P.2d 151].)

9 “Justice Arabian’s [lead] opinion in Ford implicitly assumed, and the opinions of Justice George, joined by Chief Justice Lucas, and Justice Mosk expressly concluded, that if the four elements of section 669(a) were satisfied, that statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Cheong, supra, 16 Cal.4th at p. 1071.)

[***26] In Cheong, supra, 16 Cal.4th 1063, two friends were skiing together and collided, resulting [**208] in litigation. The trial court granted summary judgment in the defendant’s favor on the ground that a collision is an inherent risk of downhill skiing. On appeal, the plaintiff argued that the defendant’s violation of a county ordinance delineating the duties of skiers resulted in liability under Evidence Code section 669 and foreclosed the application of the primary assumption of risk doctrine. The ordinance expressly provided that a skier assumes the “inherent risks” of skiing, including the risk of collision with other skiers. (Id. at pp. 1069-1070.) The majority held that the ordinance did not create any duty other than that available under common law. The court said that “a number of the justices who have signed this [*1225] majority opinion” in Cheong questioned the conclusion of four justices in Ford that if the elements of Evidence Code section 669 were satisfied, a “statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Id. at p. 1071.) [***27] The court added that the point need not be resolved because the elements of Evidence Code section 669 had not been met–the plaintiff had “not demonstrated that he is one of the class of persons the ordinance was intended to protect.” (Ibid.) The court therefore affirmed the grant of summary judgment.

A concurring opinion, joined by two justices, expressed the view that “[t]he Knight standard of primary assumption of risk still applies even if the violation of an ordinance or statute, combined with Evidence Code section 669, creates a presumption of negligence.” (Cheong, supra, 16 Cal.4th at p. 1079 (conc. opn. of Chin, J., 10 joined by Baxter, J. and Brown, J.).) A fourth justice stated that statutory obligation along with Evidence Code section 669 did not impose a duty of care when Knight eliminated a sports participant’s duty of care. (Id. at p. 1074 (conc. opn. of Kennard, J.).) Three justices took a contrary view, with one stating that the violation of a statute displaces the “no-duty rule of Knight” (id. at p. 1073 & fn. 1 (conc. opn. of [***28] Mosk, J.)) and the others stating that Evidence Code section 669 “may transform an appropriate statute into a legal duty of due care upon the defendant.” (Id. at p. 1077 (conc. opn. of Werdegar, J., joined by George, C. J.).)

10 Justice Chin also authored the majority opinion.

The Supreme Court has not conclusively determined whether or not a violation of law can displace the primary assumption of risk doctrine. Nevertheless, four justices presently sitting on the California Supreme Court 11 –a majority–expressed the view that Evidence Code section 669 does not itself override Knight, but rather that one must ascertain whether the violated statute was intended to do so. Only two justices now on the court 12 have concluded that the violation of a safety statute or ordinance designed to protect persons in the position of a plaintiff precludes the application of the implied assumption of risk doctrine.

11 Justices Baxter, Kennard, Chin and Brown.

[***29]

12 Chief Justice George and Justice Werdegar.

The appellate court in Distefano, supra, 85 Cal.App.4th 1249, addressed this question. In that case, two men, one on a motorcycle and another in a dune buggy, were “off-roading.” After [**209] coming up opposite sides of a blind hill, they collided. Plaintiff contended that the Knight rule did not bar his action because defendant owed him statutory duties under Vehicle Code sections 38305 (proscribing driving off-road vehicles at an unreasonable or [*1226] imprudent speed) and 38316 (proscribing driving off-road vehicles with a willful and wanton disregard for the safety of other persons or property). (Id at p. 1265.)

Although the court held that a claim based on a violation of a statute was barred for procedural reasons, the court proceeded to address the merits of the contention that the Vehicle Code, along with Evidence Code section 669, imposed a tort duty that rendered the primary assumption of risk doctrine unavailable. (Distefano, supra, 85 Cal.App.4th at pp. 1266-1267.) [***30] The court stated that Vehicle Code sections 38305 and 38316, which provisions were enacted before the Supreme Court’s decision in Knight, did not evince any legislative intent to supersede or modify an assumption of risk doctrine later declared by Knight. (Distefano, at p. 1273.) The court therefore concluded that the statutory provisions “do not abrogate the Knight primary assumption of the risk doctrine, and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight.” (Id. at p. 1274.)

Because a majority of the current Supreme Court justices have expressed the view that [HN12] a violation of a statute that indicates no legislative intent to eliminate the assumption of risk defense does not displace the primary assumption of risk doctrine, and because there are no cases inconsistent with that view, we adopt the Distefano court’s conclusion. (Distefano, supra, 85 Cal.App.4th 1249.) Although the facts show that Ratinoff violated provisions of the Vehicle Code designed to protect persons using public roads, based on our conclusion [***31] as to the present state of the law, such violations do not nullify Moser’s assumption of the risk.

CONCLUSION

Under the present state of the law, as applied here, the result is reasonable. By knowingly participating in a sporting event in which what occurred is an evident risk, Moser is not entitled to a recovery from Ratinoff.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

Turner, P. J., and Grignon, J., concurred.

Appellant’s petition for review by the Supreme Court was denied April 23, 2003.


New York Summer Camp cases are examples of helicopter parenting; I gave you a perfect child, and no injuries shall occur to my child in your care, if one occurs, I will sue.

A minor at a Scout camp runs out of a shower house and falls down. The parents sue for his injuries claiming he was not supervised. At the same time, the BSA Youth Protection Training prevented adults in showers with youth. The court in this case realized the absurdity of the plaintiff’s claims and held for the defendants.

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

State: New York, Supreme Court of New York, New York County

Plaintiff: Davide E. Gomes

Defendant: Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop)

Plaintiff Claims: negligent supervision

Defendant Defenses: assumption of the risk, no duty

Holding: for the defendants

Year: 2016

The thirteen-year-old  plaintiff was a Boy Scout. He and his troop from New Jersey were at a Scout Camp in the Adirondacks of New York for a canoe trip. While at the camp, the youth walked a few minutes to a bath house. While in the bath house, the plaintiff was fooling around and ran out of the bath house and fell suffering a head injury.

According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head.

The plaintiff does not remember the incidence.

Other Scouts at the shower house reported the incident this way.

It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to the ground. None of the scouts knew what had caused the fall.

The plaintiff had been in Scouting since he was 9. He participated  in monthly camp outs with his scout troop.

The plaintiffs brought claims against the troop, the New Jersey Boy Scout council where the troop was chartered and who owned the camp and the Boy Scouts of America and the individual unit leaders.

The claims where the youth were not properly supervised, and the area around the shower house were full of roots, sticks, rocks, etc.

One issue that runs throughout the decision which is not explained is the BSA Youth Protection Program. The program requires youth to always do things in groups or at least two and prohibit adults from actively being in a position where they can observe the youth in the shower.  Even if an adult was with the youth, there would have to be two adults.

This program was put in place to protect both the youth and the adults in the Scouting program.

Another issue in this case is the camp was located in New York. The New York State Department of Health (DOH) had massive and strict rules for children’s camps and substantial ability to issue sanctions for violations of those rules. Some of those rules violate or make conforming to the BSA Youth Protection Program difficult.

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

The court first looked at the New York State Department of Health (DOH) rules concerning this case.

As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.”

The council had a written plan to confirm to the DOH rules.

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times.

DOH did find issues with the camp’s plan. The Camp and DOH reached a settlement on those issues. However, by law the information and the settlement cannot be entered into evidence in court.

DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is

not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for monetary damages.

The DOH requires that after any incident, a form be completed. In this case, the form was completed by a camp staffer who had no training in completing the form and had never completed a form before. DOH requires that after any incident a form be completed. In this case the form was completed by a camp staffer who had no training in completing the form and had never completed a form before.

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw nothing therein related to super-vision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.

The plaintiff argued that because he was unable to remember the accident, a relaxed standard of care applied to the plaintiff’s case.

Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night.

The court found issues with this.

A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action.

However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.”

The court then looked at the duty owed by the defendants.

A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable circumstances” And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.”

The New York requirement for supervision allowed for reality in not requiring constant supervision. The court then looked at the applicable standard of care.

The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.”

Moreover, this standard requires prior knowledge on the part of the camp of dangerous conduct.

Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.”

Lack of supervision alone is not enough to create a cause of action. The court found the supervision was adequate. The scouts walked to the shower house as a group without incident. Until the plaintiff started horsing around, there were no supervision issues.

The court then looked at why kids go to camps and how parents should deal with those issues.

Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities”

Quoting another case the court stated:

The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.”

The DOH report was also dismissed by the court because the person who had completed the report:

…because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein.

The court reasoned. The DOH report also had failures because it stated there lacked supervision just because an adult was not present. Supervision is not only based on an adult’s presence.

Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts

At the same time, the supervision issue was irrelevant if the accident was not foreseeable. There was no evidence presented that the scouts would engage in dangerous conduct or misbehave. Even if some of the misbehavior was foreseeable, there was no evidence that, and it was not foreseeable that the plaintiff would bolt from the shower house, trip and fall and receive an injury.

As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.

Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.

On top of all of that, even if leaders were present the accident happened too quickly for anyone to have stopped it. Besides, the acts leading to the injury were solely done by the plaintiff, without interference or prodding from anyone other youth or leader. “Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury.”

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

The final issue tackled by the courts was the lighting and conditions of the area where the shower house was located. Because the plaintiff could not identify what caused him to fall, it could not be said the fall was caused by inadequate lighting.

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

On top of that, the plaintiff was wearing a headlamp at the time of the accident so even if lighting were to blame the plaintiff had brought his own. Identifying the area around the shower house without being able to identify which of those conditions caused his injury is not enough to argue a legal claim.

Plaintiff was able, however, to recall the conditions outside of the shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.

The decision of the trial court was upheld, and the plaintiff’s claims were dismissed.

So Now What?

First, more information needs to be given to parents to try to educate them of the risks of any youth activity. On top of this, programs designed to protect kids need to be explained both to why they are used and what the adults can and cannot do, like the BSA YPT program.

On top of that, you need to develop proof that your parents knew the risks of the activity. New York does not allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) As such the only real defense you would have would be assumption of the risk. (See Assumption of the Risk and Assumption of Risk — Checklist)

I would include in that assumption of the risk form statements about the kid’s age and prior camping/outdoor experience as in this case. Ask the parents to relate or checkbox their outdoor experience.

You can use the form to determine who else can help your unit or program, and you can use the form to prove the parents knew and assumed the risk.

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Plaintiff failed to prove her injuries were due to the construction of the water park slide, and she also assumed the risk.

An injury is not enough; you must be able to relate your injury to the exact cause, and that cause must be based on a failure to do or not do a duty by the defendant.

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

State: Maryland, United States District Court for the District of Maryland

Plaintiff: Beth Stolting, et al.

Defendant: Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: Defendant

Year: 2001

The plaintiff and a boyfriend, who eventually became her husband, went to the defendant’s water park. She had been to water parks 15-20 times over the years, and ridden water slides hundreds of times. However, she had never visited this park.

At the entrance of the park was a sign which warned of the risks of the park.

The attractions contained within the Splash Mountain Waterpark are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.

The plaintiff admitted that she read the sign when she entered the park. After entering the park the plaintiff went on several water slides before going down the slide that injured her. Before riding that slide, she watched others go down the slide.

There were no warning signs posted at the slide. Nor were there instructions on how to ride the slide. As the plaintiff prepared to go down the slide, she placed herself in the positions; she had seen other riders with her knees bent about 40 degrees.

After exiting the slide, she hit the bottom of the pool. The plaintiff was assisted out of the pool by a lifeguard who suggested she go to a hospital. The plaintiff transported herself to the hospital. Eventually, she was diagnosed with several broke vertebrae, which required several months of recovery.

The plaintiff sued for her injuries.

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

Under Maryland law, to prove negligence the plaintiff must prove:

Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty and the harm suffered; and 4) that damages were sustained.

The plaintiff argued that the defendant had notice of the dangerous condition because two prior claims had been filed for similar injuries on the same water slide. The plaintiff then claimed that notice of those injuries created a duty on the part of the defendant to post warning signs.

The next issue was the standard of care owed by the defendant to the plaintiff. The rule in Maryland is a water park owes business invitees a duty to use ordinary care.

The general rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.”

The plaintiff then argued the defendant breached its duty to provide ordinary and diligent care by not posting warning signs informing patrons of the danger of the slide.

The plaintiff failed on this claim because she presented no admissible evidence that the angle of the slide was too steep. The plaintiff relied upon the opinion of the other injured patrons on the same slide. “The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.”

The park had the slide evaluated after the prior injuries by a licensed professional from the state. Since the plaintiff could not present any evidence of the dangerousness of the slide, the review by the professional was sufficient to defeat this claim. “There is no evidence adequate to establish that a pertinent standard of care required additional warnings.”

On top of that, the plaintiff had read the warnings at the entrance of the park which placed the plaintiff on notice of the dangerous condition, required by the duty owed to business-invitees.

The plaintiff hired an expert witness to assist in her case; however, the expert’s opinion was ruled inadmissible in a prior motion. Consequently, she could not provide any evidence to support here claim that the defendant breached its duty by not posting instructions on how to ride the slide.

Even if her expert’s opinion had been admissible, there was no evidence posted that the way the plaintiff rode the slide was the cause of her injury. There was no connection between riding the slide and riding the slide a specific way that might have caused or would not have caused her injuries.

The final issue was the depth of the pool at the bottom of the slide. Again, she could offer not expert testimony to support that claim. The engineer from the state had inspected the pool and found that its depth was adequate. “There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently pro-vided too shallow an exit pool.”

The court then found the plaintiff assumed the risk of her injuries. In Maryland, assumption of the risk is a complete bar to a negligence claim. To prove assumption of the risk the defendant must prove:

To establish an assumption of risk defense, the Defendants have the burden of demonstrating that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger.

To determine if the plaintiff knew, appreciated and voluntarily confronted the risk, the court used an objective standard.

An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.”

The defendant met this standard based on the plaintiff’s experience in riding other water slides and watching people ride this slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .

Additionally, the plaintiff’s a person of normal intelligence would have understood the risks of this slide. “In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.”

Finally, the plaintiff voluntarily confronted the risk.

After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”

The court found that any reasonable jury would find the plaintiff assumed the risk.

The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.

In a rare issue in a decision, the court found two complete and valid defenses to the plaintiff’s claims. Normally, courts only find one reason to support or over throw a decision and stop there.

So Now What?

A lot of this win for the defendant was based on three things. The plaintiff admitted having gone to water parks and down water slides before, she admitted reading the warning sign at the entrance, and she watched other riders before going down the slide herself. That proved she has knowledge and appreciation of the risk and voluntarily assumed the risk.

The second issue was the defendant hired an expert after just a few incidents to check out its slide. Again, acting prior to the lawsuit was better and probably a lot cheaper in the long run to see if the problem was real or isolated incidents.

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Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

Beth Stolting, et al., Plaintiffs vs. Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al, Defendants

CIVIL ACTION NO. MJG-00-299

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2001 U.S. Dist. LEXIS 26572

August 24, 2001, Decided

August 24, 2001, Filed

SUBSEQUENT HISTORY: Motion granted by Stolting v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26573 (D. Md., Aug. 24, 2001)

Affirmed by Stolting v. Jolly Roger Amusement Park, Inc., 37 Fed. Appx. 80, 2002 U.S. App. LEXIS 11925 (4th Cir. Md., 2002)

CORE TERMS: slide, pool, exit, patrons, ride, riding, water slides, warning, bottom, summary judgment, amusement park, feet, legs, intelligence, splash, depth, posted, notice, bent, risk of injury, moving party, reasonable jury, appreciated, disclaimer, non-moving, shallow, warned, owed, dangerousness, negligently

COUNSEL: [*1] For Beth Stolting, Plaintiff: Paul D Bekman, LEAD ATTORNEY, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD; Andrew M. Moskowitz, William D. Sanders, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Rohan Cassells, Plaintiff: Andrew M. Moskowitz, LEAD ATTORNEY, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Jollyroger Amusement Park, Inc., doing business as Splash Mountain Water Park, Defendant: J Paul Mullen, LEAD ATTORNEY, Phoenix, MD; Kathleen M Bustraan, Ward and Bustraan LLC, Towson, MD.

JUDGES: Marvin J. Garbis, United States District Judge.

OPINION BY: Marvin J. Garbis

OPINION

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

The Court has before it Defendants’ Motion for Summary Judgment and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary.

I. BACKGROUND

A. Plaintiff’s Injury on the Shotgun Slide

On June 2, 1999, Plaintiffs Beth Stolting (hereinafter “Stolting”) and Rohan Cassells 1 (hereinafter “Cassells”), went to the Jolly Roger Amusement Park/Splash Mountain Park (hereinafter the “Park”) in Ocean City, Maryland. Stolting had been to water parks on “fifteen to twenty ” separate occasions and had been on water slides “hundreds of times,” [*2] but had never visited the Park. Stolting Dep. 29.

1 Now her husband and a plaintiff in the case.

At the entrance of the amusement park, a prominent disclaimer was posted. The sign read as follows:

The attractions contained within the Splash Mountain Water[]park are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.

Stolting read the sign upon entering the amusement park. She went on several water slides before arriving at the “Shotgun” 2 water slide (hereinafter “slide” or “ride”), which is the slide at issue in the instant case. Stolting Dep. 37. There were no posted instructions on how to ride the slide or any signs warning of the possible dangers posed by the slide. However, there were signs containing height restrictions, signs banning the use of inner tubes, and depth markers displaying the depth of the entry pool 3. Prior to riding the slide, Stolting watched others go down it. As Stolting prepared to go down the slide, she imitated the body positioning of those people who had previously been on the slide. With her knees bent at a “forty degree angle,” Stolting [*3] descended down the slide, hitting the bottom of the exit pool with her feet. Stolting Dep. 39- 40. Stolting does not remember how she landed or the positioning of her legs as she hit the water. Stolting Dep. 40- 41. However, she does allege that she felt her feet “hit the bottom of the pool . . . immediately” upon entering the exit pool. Stolting Dep. 44.

2 Also known as “the Cannonball Slide.”

3 The pool of water at the bottom of the slide is also referred to as the “entry” or “splash” pool.

At that point, Stolting lost her breath. She went to the side of the exit pool and was helped out of the pool and into a chair by lifeguards. At that time, Stolting complained of pain in her back, feet, and legs. The lifeguards gave Stolting ice and suggested that she should go to a hospital.

After resting for ten minutes, Stolting asked Cassells to take her to the Atlantic General Hospital in Ocean City, Maryland. 4 Stolting told the attending physician at the hospital that she was experiencing back and heal pain. The doctor took x-rays of Stolting’s heals, and then “told [her that] if [she] could walk out on crutches that [she] could leave.” 5 [*4] Stolting Dep. 50. Stolting was not given any medication.

4 Stolting never requested an ambulance.

5 No diagnosis was given.

During the next few days, she continued to rest and take Advil. Approximately one week later, Stolting was still experiencing pain and so, she decided to see Dr. Fischer (hereinafter “Fischer”). Fischer diagnosed Stolting with three fractured vertebrae. Stolting was told to remain on Advil and to continue bed rest. Fischer stated that it would take at least six months for her back to heal.

B. Prior Injuries on the Shotgun Slide

In recent years, several other patrons have complained of injuries allegedly sustained while riding the Shotgun slide. In 1997, Myron Custer (hereinafter “Custer”) reported a bruised heel from contacting the bottom of the exit pool of the Shotgun slide. Custer accused the Park of maintaining an unsafe ride.

In 1998, Michael Agnello Jr.(hereinafter “Agnello”), reported receiving injuries from riding the slide. Agnello Affi. After contacting the bottom of the exit pool, Michael complained of bruised legs and walking with a limp for a few days. The Park responded to complaints by stating that a licensed inspector from the Department of Labor Safety [*5] Inspection had investigated the slide and concluded that the slide met all of Maryland’s standards of safety.

C. Procedural Posture

In the Amended Complaint, Plaintiffs sue Defendants, Jolly Roger Amusement Park, Inc., Splash Mountain Water Park, and Bayshore Development Corporation. Plaintiffs allege that the Defendants’ negligence caused Stolting’s injuries. The Defendants deny negligence and assert an affirmative defense of the assumption of risk doctrine. By the instant motion, Defendants seek summary judgment on all claims.

II LEGAL STANDARD

In order for the Court to grant a motion for summary judgment, the evidence submitted to the Court must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact is one which might affect the outcome of the lawsuit under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The burden of proof weighs heavily on the moving party to establish that there is a lack of evidence in support of the non-moving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party [*6] must demonstrate to the Court that, viewing all of the evidence in the light most favorable to the non-moving party, a reasonable jury could not find in favor of the non-moving party. Anderson, 477 U.S. at 248. If the moving party has carried its burden of proof, then the non-moving party must produce more than a “mere scintilla of evidence in support of an essential element” in order to prevent the court from granting summary judgment. Id. at 251.

III DISCUSSION

A. Negligence claim

The Plaintiffs’ claim is based on three purported acts of negligence:

1) After being put on notice that patrons had been injured on the Shotgun slide, Defendants negligently failed to post signs warning of the dangerousness of the ride;

2) Defendants negligently failed to post instructions on how patrons should position their bodies when riding the slide; and,

3) Defendants negligently provided too shallow an exit pool at the bottom of the slide.

Under Maryland 6 law, Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty [*7] and the harm suffered; and 4) that damages were sustained. Yousef v. Trustbank Sav., F.S.B., 81 Md.App. 527, 536-36, 568 A.2d 1134 (1990).

6 This case is a diversity action. Since Stolting’s cause of action took place in Maryland, that state’s substantive law applies. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

1) Failure to Warn of Dangerousness

The Plaintiffs contend that the Park was on notice of the dangerousness of the Shotgun slide and should have posted signs warning of the dangers because other patrons had been injured on the slide. In support of their claim, Plaintiffs rely on prior injuries received by Custer and Agnello while they were on the Shotgun slide. The Plaintiffs maintain that notice of such injuries imposed a duty on the Park to post warning signs next to the ride.

The Plaintiffs argue that, as patrons of the Park, they were owed the highest standard of care. Tennant v. Shoppers Food Warehouse MD Corp., 115 Md.App. 381, 388, 693 A.2d 370 (1997), (citing Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 457, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989)). According to Casper, however, reasonable or ordinary care is the highest standard of care owed to a business invitee. 71 Md. App. at 457. “The general [*8] rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” Hawkins v. Southern Maryland Agricultural Fair Ass’n, 237 Md. 90, 94 (1964), 205 A.2d 286. An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. See Carlin v. Krout, 142 Md. 140, 147, 120 A. 232 (1923). Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.” Id. at 146.

At issue is whether the Park breached this duty to provide “ordinary and diligent care” by not posting signs warning of the dangerousness of the Shotgun slide. The Plaintiffs contend that reports of injuries sustained from former patrons who used the ride put the Park on notice that the slide was dangerous. The Plaintiffs base their claim particularly on the testimony of Custer, who was allegedly injured from riding the Shotgun slide in 1997.

When Custer reported his injuries to the Park, he insisted that the slide [*9] was dangerous because the angle of slope was too steep. Custer’s claim is unsubstantiated. Indeed, a licensed inspector from Maryland investigated the ride and found that the Shotgun slide met the safety standards set out by Maryland law. In any event, Custer is by no means qualified to provide admissible opinion testimony that the angle of the slide was “too steep.” Moreover, his opinion is not based on any scientific principles and is no more than his grossly unqualified ipse dixit.

Although the Plaintiffs correctly state that “Maryland has gone almost as far as any state in holding that meager evidence of negligence is sufficient to submit the case to a jury,” the opinion offered by Custer is not enough to take the issue to a jury. State v. Thurston, 128 Md. App. 656, 662, 739 A.2d 940 (1999). The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.

The Park did all it need have done by having the slide evaluated and vouched for by a licensed professional. Moreover, even if the Park were on notice of a dangerous condition posed by the Shotgun slide, the Park adequately warned [*10] patrons of the dangers of water slides by posting a disclaimer at the entrance of the amusement park. Stolting admitted in her deposition that she saw the disclaimer and that although she did not remember what it said, she read it. Stolting Dep. 90. The sign posted at the entrance of the Park expressly warned patrons that all rides within the Water park “carr[ied] with them an inherent risk of injury.” There is no evidence adequate to establish that a pertinent standard of care required additional warnings. Defs.’ Reply to Pls.’ Mot. for Summ. J. at 4.

2) No Posted Instructions

The Plaintiffs argue that the Park had an obligation to post instructions on how to ride the Shotgun slide. They offered Hanst’s purported “expert” opinion in support of this contention that patrons should have been told to keep their knees bent when riding down the slide 7. For the reasons stated in its Memorandum and Order re: Motion In Limine, issued this date, Hanst’s “expert” opinion has been held inadmissible.

7 Plaintiffs claim that riding with straight legs as opposed to bent knees caused the accident.

Moreover, even if Hanst’s opinion were considered, and there has been a duty to warn Plaintiff to keep her [*11] legs bent, the “negligent” failure to give the advice would be irrelevant. Stolting cannot establish causation. Stolting testified that her legs were bent at a “forty-degree angle” as she slid down the slide. Stolting Dep. 39-40. Thus, even if Plaintiffs had established a duty to instruct a breach of that duty, Plaintiffs cannot establish that the failure to instruct was a proximate cause of her injuries.

3) Depth of the Exit Pool

The Plaintiffs argue that the Defendants were negligent because the exit pool at the bottom of the Shotgun slide was too shallow. Plaintiffs base this claim on the opinion of Hanst who asserted that the exit pool should have been eight to ten feet. 8 As held in the Memorandum and Order re: Motion in Limine issued this date, Hanst’s expert opinion is inadmissible.

8 The exit pool is four to five feet deep. Hanst opined that it should have been four to five feet deeper than it was.

Additionally, both Olsen, the engineer, and the inspector from the Department of Inspection and Safety verified that the slide met the safety standards enforced by the state of Maryland. Even Hanst verified in his deposition that there was nothing in the inspector’s or the engineer’s [*12] reports with which he disagreed. In fact, Hanst’s own investigation of the slide, which consisted of riding the slide himself and watching others on the slide, did not produce any findings contradictory to those of the Defendants. Neither Hanst nor any of the people he watched on the slide were injured after making contact with the bottom of the exit pool.

There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently provided too shallow an exit pool. No reasonable jury could find that the Park was negligent by virtue of having an exit pool with a depth of “only” between four and five feet. 9

9 Indeed, a reasonable jury might even find that an eight to ten foot deep exit pool, as suggested by Hanst, could create a danger of drowning.

B, Assumption of Risk

The Court notes that even if Plaintiffs were able to establish that some negligence by Defendants caused the accident at issue, Defendants would still be entitled to summary judgment.

In Maryland, assumption of risk is an affirmative defense to a claim of negligence. ADM P’ship v. Martin, 348 Md. 84, 91, 702 A.2d 730 (1997). To establish an assumption of risk defense, the Defendants have the burden of demonstrating [*13] that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger. Id. at 90-91. An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Id. (quoting Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273 (1967)). Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Schroyer v. McNeal, 323 Md. 275, 283-84, 592 A.2d 1119 (1991).

1) Knowledge of the Risk of Danger

Stolting’s experience riding water slides establishes that Stolting had knowledge of the risks she faced when she chose to ride the Shotgun slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .” Prosser and Keeton on the Law of Torts, § 68, at 485-86 (5th ed. 1984). [*14] Moreover, Stolting in fact read the sign warning of the danger.

2) Appreciation of the Risk

If any person of normal intelligence in [one’s same] position would have understood the danger one faced, then one has appreciated the risk. Leakas v. Columbia Country Club, 831 F.Supp. 1231, 1236 (D. Md. 1993). The Court determined in Leakas that a “twenty-six year old, experienced swimmer,” had the “knowledge and appreciation of the risk of diving into shallow water because any person of normal intelligence in Leakas’ position must have understood the danger.” Leakas, 831 F.Supp. at 1236. Moreover in Casper, the court held that a stream covered over by a sheet of ice was an “open and obvious danger,” which every child could understand and appreciate. Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 458, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989).

In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.

Plaintiffs, relying on Maryland State Fair and Agricultural Society, Inc., argue that even though Stolting might have had knowledge of a risk based on her experience, she did not appreciate the risk posed by the Shotgun [*15] slide. Md. State Fair and Agric. Soc’y, Inc. v. Lee, 29 Md.App. 374, 380-81, 348 A.2d 44 (1964) (holding that racetrack owners’ negligence in leaving track sandy created a hidden and unforeseeable danger, which caused plaintiff’s injuries). The facts of Maryland State Fair and Agricultural Society, Inc., however, are distinguishable from those in the instant case.

In Maryland State Fair and Agricultural Society, Inc., the Court held that the dangers posed by the negligent conditions (in particular a sandy track) would not necessarily have been comprehended by “any person of normal intelligence in [the plaintiff’s] position.” 29 Md.App. at 381. In the instant case, there is no danger that a person of ordinary intelligence could not have fully appreciated. There is no evidence of any hidden or unforeseeable dangerous condition that caused Stolting’s injuries. In fact, the evidence establishes that the risk posed by the water slide was an open and obvious risk of which Plaintiff (and all other park patrons) was expressly warned. The risk could be, and should have been, appreciated by Stolting and any other reasonable person.

3) Voluntarily Confronted the Risk of Danger

Finally, the Defendants argue that [*16] in addition to knowing and appreciating the risk, Stolting voluntarily confronted the risk. The Defendants rely on the decision in Leakas in which the Court determined that Leakas assumed the risk when he chose to dive into a pool “of unknown depth.” 831 F.Supp. at 1237. Like the plaintiff in Leakas, Stolting “voluntarily encounter[ed] the danger.” Id. After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”

The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.

IV. CONCLUSION

For the foregoing reasons:

1. [*17] Defendants’ Motion for Summary Judgment is GRANTED.

2. Judgment shall be entered by separate ORDER.

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge

JUDGMENT ORDER

By separate Order issued this date, the Court has granted summary judgment to the Defendants.

Accordingly:

1. Judgment shall be, and hereby is, entered in favor of Defendants JOLLY ROGER AMUSEMENT PARK, INC. d/b/a SPLASH MOUNTAIN WATER PARK and Bayshore Development Corporation against Plaintiffs Beth Stolting and Rohan Cassells dismissing all claims with prejudice with costs.

2. Any and all prior rulings disposing of any claims against any parties are incorporated by reference herein.

3. This Order shall be deemed to be a final judgment within the meaning of Rule 58 of the Federal Rules of Civil Procedure

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge


Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532

Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532

Petitioner: Salynda E. Fleury, individually on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris, v. Respondent: IntraWest Winter Park Operations Corporation.

Supreme Court Case No. 14SC224

SUPREME COURT OF COLORADO

2016 CO 41; 2016 Colo. LEXIS 532

May 31, 2016, Decided

NOTICE:

THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION

PRIOR HISTORY: [**1] Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 13CA517.

DISPOSITION: Judgment Affirmed.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The definition of “inherent dangers and risks of skiing” in Colo. Rev. Stat. § 33-44-103(3.5) (2015) of the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically included snow conditions “as they exist or may change;” [2]-This phrase encompassed an in-bounds avalanche, which was the movement, or changing condition, of snow; [3]-Although the resort was aware of avalanche warnings, the unstable snow on the run where an avalanche occurred, and the areas within the resort that were most susceptible to avalanches, and it neither closed the run nor posted signs to warn skiers of the avalanche risk, it was not liable for a skier’s death from an in-bounds avalanche, pursuant to Colo. Rev. Stat. § 33-44-112 (2015).

OUTCOME: Judgment affirmed.

CORE TERMS: snow, avalanche, skiing, skier, avalanches, ski area, inherent danger, terrain, ski, powder, in-bounds, encompass, weather, pack, ice, variations, steepness, slope, inherent risk, collisions, warning, slush, lift, natural objects, immunity, resort, packed, sport, wind, rock

LexisNexis(R) Headnotes

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN1] The definition of “inherent dangers and risks of skiing” in Colo. Rev. Stat. § 33-44-103(3.5) (2015) of the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically includes snow conditions as they exist or may change. This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN2] The statutory definition of risks of skiing specifically lists “snow conditions as they exist or may change” as an inherent danger and risk of skiing. Colo. Rev. Stat. § 33-44-103(3.5) (2015). This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. Therefore, an in-bounds avalanche qualifies as an inherent risk of skiing under the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015).

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

Civil Procedure > Appeals > Standards of Review > Fact & Law Issues

Civil Procedure > Appeals > Standards of Review > De Novo Review

[HN3] Whether the term “inherent dangers and risks of skiing” as defined in Colo. Rev. Stat. § 33-44-103(3.5) (2015) encompasses in-bounds avalanches is a question of statutory interpretation that is reviewed de novo.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN4] The the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), recognizes that certain dangers and risks inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed by ski area operators. Colo. Rev. Stat. § 33-44-102 (2015). It therefore provides that no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing. Colo. Rev. Stat. § 33-44-112.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN5] The the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically defines “inherent dangers and risks of skiing” as those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. Colo. Rev. Stat. § 33-44-103(3.5) (2015).

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN6] The Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically excludes the negligence of a ski area operator as set forth in Colo. Rev. Stat. § 33-44-104(2) (2015) from the definition of inherent dangers and risks of skiing and does not immunize operators for injuries caused by the use or operation of ski lifts.

Governments > Legislation > Interpretation

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN7] The term “injury” as used in the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), includes death.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN8] The phrase “snow conditions as they exist or may change” in Colo. Rev. Stat. § 33-44-103(3.5) (2015) encompasses avalanches that occur within the bounds of a ski resort. A “condition” is simply a mode or state of being, or more specifically, the physical state of something. A “snow condition,” therefore, is simply a mode or state of being or the physical state of snow. To put it differently, a snow condition is a description of the snow at any given time. Section 33-44-103(3.5) lists ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow as examples of snow conditions–that is, ways in which to describe the physical state of the snow at any particular time.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN9] Colo. Rev. Stat. § 33-44-103(3.5) (2015) contemplates that the snow conditions may change. § 33-44-103(3.5) lists “snow conditions as they exist or may change” as an inherent risk of skiing. One obvious way in which a snow condition “may change” is through movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity. The dictionary definition of avalanche is a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice. Although this definition could include snowless rockslides or landslides, in practice, avalanche usually refers to the snow avalanche.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN10] An avalanche is one way in which snow conditions may change for purposes of the definition of inherent dangers and risks of skiing in Colo. Rev. Stat. § 33-44-103(3.5) (2015).

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN11] Because an avalanche is, at its essence, the movement of snow, and is therefore a way in which snow conditions may change, Colo. Rev. Stat. § 33-44-103(3.5) (2015) covers in-bounds avalanches. It follows that § 33-44-112 precludes skiers from suing operators to recover for injuries resulting from in-bounds avalanches.

Governments > Legislation > Statutory Remedies & Rights

[HN12] A statute may modify or restrict a common law right only to the extent embraced by the statute.

HEADNOTES

Ski Safety Act of 1979–Statutes–Immunity Statutes–Plain Language–Plain, Ordinary, Common, or Literal Meaning–Public Amusement and Entertainment–Skiing and Snowboarding

SYLLABUS

The Colorado Supreme Court holds that an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015). The definition of “inherent dangers and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), specifically includes “snow conditions as they exist or may change.” By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. As such, section 33-44-112, C.R.S. (2015), precludes skiers from recovering for injuries resulting from in-bounds avalanches.

COUNSEL: Attorneys for Petitioner: Burg Simpson Eldredge Hersh & Jardine, PC, James G. Heckbert, Diane Vaksdal Smith, Nelson P. Boyle, Englewood, Colorado.

Attorneys for Respondent: Rietz Law Firm, LLC, Peter W. Rietz, Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado.

Attorney for Amici Curiae Association of Professional Patrollers and Fédération Internationale [**2] des Patrouilles de Ski: Gassman Law Firm LLC and Community Legal Center, Edward C. Gassman, Loveland, Colorado.

Attorneys for Amicus Curiae Colorado Ski Country USA, Inc.: Davis Graham and Stubbs LLP, Jordan Lipp, John M. Bowlin, Denver, Colorado; Colorado Ski Country USA, Inc., Melanie Mills, Denver, Colorado.

Attorney for Amicus Curiae Colorado Trial Lawyers Association: Heideman Poor LLC, John F. Poor, Denver, Colorado.

JUDGES: JUSTICE EID delivered the Opinion of the Court. JUSTICE MÁRQUEZ dissents, and JUSTICE GABRIEL joins in the dissent.

OPINION BY: EID

OPINION

en banc

JUSTICE EID delivered the Opinion of the Court.

[*1] In this case, we determine whether an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015) (the “SSA” or “Act”). If so, the statute would preclude skiers from bringing claims against ski area operators for injuries resulting from these kinds of avalanches. See § 33-44-112, C.R.S. (2015).

[*2] Here, petitioner Salynda E. Fleury brought a negligence and wrongful death suit against respondent IntraWest Winter Park Operations Corporation (“Winter Park”) after her husband was killed in an in-bounds avalanche at its resort. Fleury [**3] claims that, although Winter Park knew that avalanches were likely to occur in the area where her husband was skiing that day, it neither warned skiers about this risk nor closed the area. Winter Park filed a motion for a determination of law under C.R.C.P. 56(h) and for judgment on the pleadings under C.R.C.P. 12(c), arguing that in-bounds avalanches are an inherent risk of skiing as defined in the SSA and that the SSA therefore precluded the lawsuit. The trial court agreed and dismissed the action pursuant to section 33-44-112.

[*3] The court of appeals affirmed the dismissal in a split decision. The majority concluded that avalanches fall within the statutory meaning of the phrase “inherent dangers and risks of skiing” because they result from “snow conditions as they exist or may change,” “changing weather conditions,” and “variations of steepness or terrain,” all of which are specifically enumerated as “inherent dangers and risks” under the statutory definition. Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13, ¶¶ 15-16, ___ P.3d ___. Judge J. Jones dissented, arguing that the statute neither expressly nor by clear implication included in-bounds avalanches as an inherent risk of skiing. Id. at ¶ 29 (J. Jones, J., dissenting).

[*4] We granted certiorari and now affirm. [HN1] The definition of “inherent dangers [**4] and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), specifically includes “snow conditions as they exist or may change.” This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. We therefore affirm the decision of the court of appeals.

I.

[*5] We accept as true the following allegations from the complaint. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 7, 287 P.3d 842, 845 (citing Abts v. Bd. of Educ., 622 P.2d 518, 521 (Colo. 1980)).

[*6] On January 22, 2012, Christopher H. Norris was killed in an avalanche while skiing on the “Trestle Trees” run within the bounds of Winter Park Resort. In the days leading up to his death, the Colorado Avalanche Information Center had predicted heavy snow storms and issued an avalanche warning to last through January 23. It warned skiers to “[b]e careful near or below any slope over 30 degrees” and cautioned that “the weak snowpack will not be able to handle even [a] modest new load” of snow from the coming storms. Prior to the arrival of these storms, the existing snow base on the Trestle Trees run had grown weak and unstable, which made it prone to avalanches. Winter Park knew about the avalanche warnings, the unstable snow on the Trestle Trees run, and the areas within the resort that were most susceptible to avalanches on January 22, [**5] including Trestle Trees, but it neither closed the run nor posted signs to warn skiers of the avalanche risk.

[*7] After her husband’s death, Fleury brought negligence and wrongful death claims against Winter Park. Winter Park filed a motion for a determination of law under C.R.C.P. 56(h) and for judgment on the pleadings under C.R.C.P. 12(c), arguing that the SSA barred the lawsuit because avalanches constitute an inherent risk of skiing under the statutory definition.

[*8] The trial court granted the motion. It found that the allegations in the complaint indicated that the fatal avalanche resulted from a combination of “changing weather conditions,” “snow conditions,” and “variations in steepness or terrain” as enumerated in section 33-44-103(3.5). The court rejected Fleury’s argument that the statute needed to expressly enumerate the term “avalanches” for avalanches to be covered as an inherent risk because section 33-44-103(3.5) uses the non-exclusive term “including” before listing examples of inherent risks. As such, it dismissed the complaint with prejudice.

[*9] In a split decision, the court of appeals affirmed the dismissal. Fleury, ¶ 28. The majority agreed with the trial court that the word “including” was “illustrative and not, as Ms. Fleury argues, confined [**6] to the identified dangers” in the statute because it is “a word of extension or enlargement.” Id. at ¶ 11. It went on to conclude that avalanches result “from certain conditions of snow, and the degree of danger is affected by ‘changing weather conditions’ across ‘variations of steepness or terrain.'” Id. at ¶ 15. Consequently, the court held that the term “inherent dangers and risks of skiing” under section 33-44-103(3.5) encompasses avalanches. Id. at ¶ 16.

[*10] In dissent, Judge Jones objected that the majority “cobbl[ed] together three categories of covered dangers and risks” to conclude that avalanches are covered under the definition even though they are not expressly included in it. Id. at ¶ 38 (J. Jones, J., dissenting). He argued that this approach violated the rule that statutory grants of immunity must be strictly construed, and characterized an avalanche as an “event–one that not even necessarily involves snow,” as distinguished from “changing weather conditions,” “snow conditions,” or “variations in steepness or terrain.” Id. at ¶¶ 38, 42, 43-45. Finally, Judge Jones asserted that avalanches do not always result from the mere combination of these three factors, because other factors, including human action, [**7] can also cause them independently. Id. at ¶ 46. Thus, even if the majority was correct to aggregate the different categories under the statute, Judge Jones contended that the statute still did not unambiguously encompass avalanches. Id. at ¶ 48. For these reasons, he would have reversed the trial court. Id. at ¶ 29.

[*11] We granted certiorari to review the court of appeals’ decision and now affirm.1 [HN2] The statutory definition specifically lists “snow conditions as they exist or may change” as an “inherent danger[] and risk[] of skiing.” § 33-44-103(3.5). This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. We therefore hold that an in-bounds avalanche qualifies as an inherent risk of skiing under the SSA.2

1 We granted certiorari to review the following issue:

Whether, for the purposes of the Ski Safety Act (“SSA”) of 1979, codified at sections C.R.S. 33-44-101 to -114 (2014), the term “inherent dangers and risks of skiing,” as defined in C.R.S. 33-44-103(3.5) (2014), encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.

2 Because we find that the enumerated term “snow conditions as they exist or may change” encompasses in-bounds avalanches, [**8] we do not reach the question of whether the term “including” as used in section 33-44-103(3.5) is exclusive or non-exclusive.

II.

[*12] [HN3] Whether the term “inherent dangers and risks of skiing” as defined in section 33-44-103(3.5) encompasses in-bounds avalanches is a question of statutory interpretation that we review de novo. Hunsaker v. People, 2015 CO 46, ¶ 11, 351 P.3d 388, 391.

[*13] [HN4] The SSA recognizes that certain dangers and risks “inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed” by ski area operators. § 33-44-102, C.R.S. (2015). It therefore provides that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” § 33-44-112.3 [HN5] The Act specifically defines “inherent dangers and risks of skiing” as

those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, [**9] signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

§ 33-44-103(3.5) (emphasis added). [HN6] The Act specifically excludes “the negligence of a ski area operator as set forth in section 33-44-104(2)” from this definition and does not immunize operators for “injur[ies] caused by the use or operation of ski lifts.” Id.

3 We have construed [HN7] the term “injury” to include death. Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007).

[*14] [HN8] The phrase “snow conditions as they exist or may change” encompasses avalanches that occur within the bounds of a ski resort. A “condition” is simply a “mode or state of being,” Webster’s Third New International Dictionary 473 (2003), or more specifically, “the physical state of something,” Merriam–Webster Online Dictionary, https://perma.cc/E4DZ-9UZA . A “snow condition,” therefore, is simply a “mode or state of being” or “the physical state” of snow. To put it differently, a snow condition is a description of the snow at any [**10] given time. Section 33-44-103(3.5) lists “ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow” as examples of snow conditions–that is, ways in which to describe the physical state of the snow at any particular time.

[*15] [HN9] The statute also contemplates that the snow conditions “may change.” § 33-44-103(3.5) (listing “snow conditions as they exist or may change” as an inherent risk of skiing (emphasis added)). One obvious way in which a snow condition “may change” is through movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity. The dictionary definition of “avalanche” is “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice.” Webster ‘s Third New Inter national Dictionary 150 (2003); see also The American Heritage Dictionary of the English Language 383 (4th ed. 2000) (defining “avalanche” as “[a] fall or slide of a large mass, as of snow or rock, down a mountainside”). Although this definition could include snowless rockslides or landslides, “[i]n practice, [‘avalanche’] usually refers to the snow avalanche.” Nat’l Oceanic and Atmospheric Admin., Avalanche [**11] , Nat’l Weather Serv. Glossary, https://perma.cc/VYR3-CXAZ ; see also Nat’l Avalanche Ctr., Avalanche, Encyclopedia, https://perma.cc/LRR7-K782 (defining “avalanche” as “[a] mass of snow sliding, tumbling, or flowing down an inclined surface” and explaining the types of avalanches, all of which involve moving snow). These sources confirm that an avalanche is most commonly understood as the movement of snow down a mountainside or other incline.

[*16] At bottom, then, [HN10] an avalanche is one way in which snow conditions may change. As alleged here, snow conditions started with fresh snow on unstable snowpack, and, within moments, changed to a mound of snow at the bottom of the incline. We therefore conclude that Norris’s death is alleged to have been caused by changing snow conditions.

[*17] Adopting the reasoning of the dissenting judge below, Fleury argues that an avalanche is “an event,” not a snow condition, and that therefore an avalanche does not fall within the statutory language. See Fleury, ¶ 42 (J. Jones, J., dissenting). This interpretation, however, ignores the fact that the language covers snow conditions as they “exist” or “may change.” [HN11] Because an avalanche is, at its essence, the movement of snow, and is therefore a way in which snow conditions may change, we hold that section 33-44-103(3.5) covers [**12] in-bounds avalanches. It follows that section 33-44-112 precludes skiers from suing operators to recover for injuries resulting from in-bounds avalanches.4

4 Because we conclude that the phrase “snow conditions as they exist or may change” encompasses in-bounds avalanches, we need not consider Fleury’s additional argument, based on the dissent, that “a statute’s grant of immunity must be strictly construed.” Fleury, ¶ 38 (J. Jones, J., dissenting); see Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654, 661 (Colo. 2000) [HN12] (“A statute may modify or restrict a common law right only to the extent embraced by the statute.”).

III.

[*18] For these reasons, we affirm the decision of the court of appeals.

JUSTICE MÁRQUEZ dissents, and JUSTICE GABRIEL joins in the dissent.

DISSENT BY: MÁRQUEZ

DISSENT

JUSTICE MÁRQUEZ, dissenting.

[*19] Today the majority holds that an avalanche that kills a skier on a designated, open run at a ski area is nothing more than a “changing snow condition,” maj. op. ¶ 16, and thus one of the “inherent dangers and risks of skiing” for which ski resorts are immune from liability under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015) (the “SSA”). To arrive at this conclusion, the majority construes the statutory phrase “snow conditions as they . . . may change” in section 33-44-103(3.5) to encompass the movement of snow, “including [**13] by wind and gravity,” maj. op. ¶ 15, such that an avalanche–the swift sliding or tumbling of a large mass of snow, ice, earth, rock, or other material down a mountain incline–is merely a “change” in the “condition” of the snow. Because the majority’s construction of section 33-44-103(3.5) is wholly unconvincing, I respectfully dissent.

I. Principles of Statutory Construction

[*20] We review issues of statutory interpretation de novo. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). When interpreting language in a statute, courts are guided by familiar principles of statutory construction. Our aim is always to ascertain and give effect to the General Assembly’s intent. Roup v. Commercial Research, LLC, 2015 CO 38, ¶ 8, 349 P.3d 273, 275. We give words their plain and ordinary meaning, id., and we examine the statutory language in the context of the statute as a whole, Foiles v. Whittman, 233 P.3d 697, 699 (Colo. 2010). We will not read into a statute language that does not exist. Boulder Cty. Bd. of Com’rs v. HealthSouth Corp., 246 P.3d 948, 954 (Colo. 2011). Finally, “when the legislature speaks with exactitude, we must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others.” Lunsford v. W. States Life Ins., 908 P.2d 79, 84 (Colo. 1995).

II. The Ski Safety Act

[*21] The purpose of the Ski Safety Act is to define the legal responsibilities, rights, and liabilities of ski area operators and of the skiers who use their facilities. § 33-44-102, C.R.S. (2015); Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 74 (Colo. 1998). Because [**14] certain dangers “inhere in the sport of skiing,” § 33-44-102, the General Assembly has limited ski area operators’ tort liability by granting them immunity for “injury resulting from any of the inherent dangers and risks of skiing,” § 33-44-112, C.R.S. (2015). The SSA defines “inherent dangers and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), listing seven categories of hazards: (1) “changing weather conditions,” (2) “snow conditions as they exist or may change,” (3) “surface or subsurface conditions,” (4) impact with natural and man-made objects commonly encountered on the slopes, (5) “variations in steepness or terrain,” (6) “collisions with other skiers,” and (7) “the failure of skiers to ski within their own abilities.”1

1 Section 33-44-103(3.5) reads, in its entirety:

“Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such [**15] natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

(Emphases added.)

[*22] The provision further elucidates some of these categories through examples. For instance, “surface or subsurface conditions” include “bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects.” Id. “[V]ariations in steepness or terrain” include but are not limited to “roads, freestyle terrain, jumps, and catwalks or other terrain modifications.” Id. And the [**16] statute describes “impact” with specific objects, namely “lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components.” Id. Relevant here, “snow conditions as they exist or may change” means conditions such as “ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow.” Id. Given the extensive list of inherent dangers in section 33-44-103(3.5), skiers and snowboarders assume much of the risk of engaging in snow sports, even within the boundaries of a ski area. And yet, nowhere in the statute does the term “avalanche” appear.

[*23] The majority nevertheless concludes that the statutory phrase “snow conditions as they . . . may change” in section 33-44-103(3.5) encompasses the “movement” of snow, maj. op. ¶ 15, such that an avalanche is simply a “change” in the “condition” of the snow. This interpretation is untenable for a host of reasons.

[*24] As an initial matter, because the SSA’s grant of immunity to ski area operators abrogates remedies available at common law, we must construe the statute strictly. Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo. 2011). Thus, “if the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest [**17] its intent either expressly or by clear implication.” Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).

[*25] Although the majority does not address the issue, Winter Park contends that section 33-44-103(3.5) must be construed broadly because it introduces the categories of dangers and risks with the word “including.” Ordinarily, the word “including” is construed expansively, such that placing “including” before a list of examples does not confine the meaning of the term to the specific examples listed. Preston v. Dupont, 35 P.3d 433, 438 (Colo. 2001).

[*26] However, viewed in the context of section 33-44-103 as a whole, the use of the term “including” at the beginning of subsection (3.5) does not function to expand the list of “inherent dangers and risks of skiing” that follow; rather, it serves to limit it. Elsewhere in section 33-44-103, which provides the definitions for terms used in the SSA, the General Assembly used “including” coupled with expansive language. For example, “Freestyle terrain” “includes, but is not limited to,” terrain parks and other features. § 33-44-103(3.3). “Skiing” “includes, without limitation,” all manner of snow sports. § 33-44-103(8). A “skier” is a person who uses the facilities of a ski area, “including but not limited to” ski slopes and trails. Id. Most significantly, subsection (3.5), the provision at issue here defining the “inherent dangers and risks of skiing,” describes [**18] “variations in steepness or terrain” as “including but not limited to” various types of natural and man-made terrain. § 33-44-103(3.5). In contrast, the General Assembly omitted this expansive additional language from the term “including” at the head of subsection (3.5). Courts must presume that the legislature did not make this choice idly; instead, “the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings.” Robinson, 179 P.3d at 1010. Thus, we can infer from the language of section 33-44-103 as a whole that the term “including” as used at the beginning of subsection (3.5) was intended to limit, not expand, the list of “inherent dangers and risks of skiing” that follow.

[*27] The history of this provision confirms this legislative intent. When first introduced, the 1990 amendment that added what is now subsection (3.5) defined “inherent dangers and risks of skiing” as those dangers or conditions “including, but not limited to,” various hazards. However, in comments before the House Committee on State Affairs, Representative McInnis, a sponsor of the bill, explained that the original bill was amended to remove the phrase “but not limited to,” and that this change was intended to narrow the provision:

We have stricken the words ‘but [**19] not limited to,’ so that it simply reads, ‘the sport of skiing, including,’ and then it goes on to say, ‘changing weather conditions, snow conditions,’ and so forth. . . . It’s a slight narrowing of the amendment, and it’s a clarification that the items that follow are the inherent risks and dangers that are being referred to.

Hearing on S.B. 90-80 Before the H. Comm. on State Affairs, 57th Gen. Assemb., 2nd Sess. (March 13, 1990) (statement of Rep. McInnis) (emphases added). In short, given this legislative intent, and given that the SSA abrogates the common law, we must construe the “inherent dangers and risks” in section 33-44-103(3.5) narrowly.

[*28] Second, as a matter of statutory construction and common sense, I simply cannot agree with the majority that the phrase “snow conditions as they . . . may change” can be construed to encompass the “movement” of snow. Maj. op. ¶¶ 15-16. The majority acknowledges that the term “condition” means “simply a ‘mode or state of being,’ or more specifically, ‘the physical state of something.'” Id. at ¶ 14 (citation omitted). I agree. Logically, then, a snow “condition” refers to the physical state of snow, as illustrated by the examples listed in the statute: “ice, hard [**20] pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow.” § 33-44-103(3.5). Each example describes a physical property or quality of the snow itself. On any given day on the slopes, skiers necessarily encounter one or more of these snow conditions.

[*29] By contrast, an avalanche is “an event–one that not even necessarily involves snow.” Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13 (J. Jones, J., dissenting). In short, an avalanche is not a “physical state” of snow but a term that describes the movement of snow. Indeed, the majority recognizes that an avalanche describes an episode: a “fall or slide of a large mass . . . down a mountainside,” or a “mass of snow sliding, tumbling, or flowing down an inclined surface.” Maj. op. ¶ 15. Yet subsection (3.5) does not include the “movement” of snow among the “inherent dangers and risks” of skiing. Under the canon of statutory construction known as noscitur a sociis, “a word may be known by the company it keeps.” St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 22, 325 P.3d 1014, 1021-22 (applying the canon by looking to the other terms grouped in a Colorado Governmental Immunity Act waiver for guidance in interpreting the term “public facility”). Here, the term “snow conditions” plainly refers to the physical state or [**21] quality of the snow itself: powder, packed powder, ice, slush, etc. Applying the canon of noscitur a sociis, a snow “condition” does not also contemplate the “movement” of snow–a wholly different concept. Indeed, in its own version of the SSA, the Idaho legislature recognized the obvious distinction between snow “conditions” and the “movement” of snow by separately providing that skiers assume the risk for both “snow or ice conditions” and “any movement of snow including, but not limited to, slides, sloughs or avalanches.” Idaho Code Ann. § 6-1106 (2015) (emphases added).

[*30] The majority nevertheless concludes that the phrase “snow conditions as they exist or may change” in subsection (3.5) encompasses the movement of snow by reasoning that the avalanche that killed Salynda Fleury’s husband was merely a “changing condition” of snow. But as discussed above, the “condition” of the snow refers to its physical quality (powder, ice, slush)–not an event, and not the snow’s location (piled on a precipice, nestled in tree branches, or lying at the base of a mountain). Consequently, a “change” in the “condition” of the snow under subsection (3.5) does not refer to a change in its location–or as the majority puts it, from “fresh snow on unstable snowpack” [**22] to “a mound of snow at bottom of the incline.” Maj. op. ¶ 16. Rather, a “change” in the “condition” of the snow simply refers to changes from one physical state or quality to another. Over the course of a few days or even a few hours, fresh “powder” can change to “packed powder.” A storm can change “hard pack” back to deep “powder.” On a spring day, “ice” can change to “hard pack,” to “slush,” and so on. But a “change” in the “condition” of snow hardly contemplates a change in the snow’s location, let alone an event like an avalanche. Accordingly, I simply cannot subscribe to the majority’s logic that the General Assembly intended “snow conditions as they exist or may change” to include avalanches.

[*31] Finally, the majority’s construction of this phrase cannot be squared with the remainder of the statute. The many hazards listed in section 33-44-103(3.5) as “inherent dangers and risks of skiing” are common, everyday conditions that any skier or snowboarder reasonably can expect to encounter on open portions of in-bounds ski areas. Importantly, each of these hazards represents dangers or risks that are either largely within a skier’s control (e.g., avoiding collisions with objects or other skiers, skiing within [**23] ability) or capable of being perceived, anticipated, assessed, and generally avoided by the skier’s choice (e.g., weather conditions, snow conditions, or terrain). See § 33-44-103(3.5).

[*32] But an avalanche is categorically different. Unlike weather, snow conditions, or terrain, the average skier lacks the training or resources to perceive and assess the risk of an avalanche on any given slope on any given day. Notably, the SSA allocates to ski area operators the risk of other hazards that fall outside of a skier’s ability to control or anticipate, but are within the ability of the ski area operator to mitigate or reasonably protect skiers therefrom. These include any “injury caused by the use or operation of ski lifts,” id., and injuries resulting from a ski area operator’s violation of SSA requirements like posting informative signage, § 33-44-106, C.R.S. (2015). Yet the majority’s construction of “snow conditions as they exist or may change” runs contrary to the rest of subsection (3.5) and allocates the risk of injury and death from an in-bounds avalanche not to ski area operators–which have the information, expertise, and resources to perceive and mitigate avalanche danger and protect skiers–but instead to the skiing public, which [**24] does not.

[*33] Perhaps the majority assumes that in-bounds avalanches can occur only on expert runs or in back bowl areas and that experienced skiers who venture onto steep, snowy slopes are knowledgeable about avalanche danger and rightly should assume the risk. However, the Trestle Trees area where Christopher Norris died was not a backcountry area but rather an open, designated run at Winter Park. Further, many expert slopes join beginner trails near the base of the mountain or have beginner-level catwalks that cross the expert runs. Under today’s holding, even a family of novice skiers traversing the mountain must be expected to look uphill, gauge the steepness of the slope, the quantity of fresh snow, and the multitude of other factors that avalanche forecasters consider, and assume the risk of being swept away by an avalanche.

[*34] Fleury alleges that Winter Park knew or should have known that the Trestle Trees area was likely to experience dangerous avalanches on the day of Norris’s death because avalanche warnings predicted heavy snows on a weak and unstable snowpack. Maj. op. ¶ 6. Despite these warnings, Winter Park neither closed the Trestle Trees nor warned skiers of the avalanche [**25] risk. Id. Certainly, ski area operators have ample incentive to mitigate the risk of avalanches and to protect skiers within their ski areas, lest the public take their ski vacations elsewhere. And without question, ski area operators go to great lengths to mitigate avalanche risk. But after today’s holding, Winter Park effectively has no duty at all to warn skiers of avalanche risk or to close a dangerous run based on such risk: the SSA does not require ski area operators to mitigate avalanches or to issue avalanche warnings, and the majority’s ruling today abrogates any common law duty of care to do so.2 In fact, under today’s holding, a ski area operator will be immune from liability for injuries from avalanches regardless of the circumstances–arguably even for avalanches triggered by the operator’s own negligent or reckless actions.3

2 The SSA does require ski area operators to print lift tickets containing a warning to skiers of the “inherent dangers and risks of skiing,” using language drawn from section 33-44-103(3.5). § 33-44-107(8)(c), C.R.S. (2015). Interestingly, this required lift ticket warning notifies skiers that they assume the risk of injury from a host of hazards, specifically: “[c]hanging weather conditions; existing and changing [**26] snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.” Id. Like subsection (3.5), nowhere in this required warning does the term “avalanche” appear. And for the reasons stated above, I gravely doubt a skier would infer from this list that “avalanches” naturally fall under the category of “changing snow conditions.”

3 In 1996, a ski patroller threw an avalanche charge from a chairlift at Loveland Ski Area in Colorado and triggered a “massive” avalanche that uprooted trees and destroyed the patroller’s own 1986 Honda Civic, parked in a lot at the base of the mountain. See John Meyer, Loveland’s Over the Rainbow was cleared by a human-set avalanche, The Denver Post, Oct. 15, 2012, http://perma.cc/C9T4-6A28 .

[*35] I note that my view of section 33-44-103(3.5) does not lead to unlimited liability for ski area operators. A plaintiff such as Fleury still must prove Winter Park’s negligence, and it is likely that ski area operators’ mitigation efforts ordinarily would meet any reasonable duty of care. Moreover, the SSA limits ski area operators’ liability in other ways, including a two-year statute of limitations [**27] for all actions to recover damages for injury caused by the maintenance, supervision, or operation of a ski area, § 33-44-111, C.R.S. (2015), and a one-million-dollar cap on damages that may be recovered by a skier injured while using a ski area, § 33-44-113, C.R.S. (2015).

[*36] In sum, although the General Assembly easily could have added “avalanches” to its extensive list of inherent dangers and risks in subsection (3.5), it chose not to. Unlike the majority, I would not add words to that provision to create immunity where none presently exists but would instead leave that decision to the legislature.4 Because the existing statutory definition of “inherent dangers and risks of skiing” does not include avalanches, and because I cannot accept the majority’s strained logic that an avalanche is merely a “change” in the “condition” of the snow, I respectfully dissent.

4 I note that other states’ versions of the SSA expressly allocate avalanche liability between ski area operators and skiers. A previous version of Montana’s statute defined “inherent dangers and risks of skiing” as including “avalanches, except on open, designated ski trails.” Mont. Code Ann. § 23-2-702(2)(c) (2013). This section was amended in 2015 to provide that avalanches do not qualify as inherent dangers “on [**28] open, machine-groomed ski trails.” See 2015 Mont. Laws 299 (emphasis added). Alaska requires ski area operators to prepare and implement a plan of operation each ski season that includes provisions for avalanche control and rescue, Alaska Stat. § 05.45.040 (2015), and a ski area operator that violates this provision is negligent and may be held civilly liable, id. at § 05.45.020.

I am authorized to state that JUSTICE GABRIEL joins in this dissent.


No one saw the deceased drown; no one could prove what happened. Campground was not liable for death of a swimmer.

Legally if a tree falls in the woods and no one is around to see it fall it does not make any noise.

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

State: Connecticut, Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport

Plaintiff: Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro

Defendant: Odetah Camping Resort, Inc.

Plaintiff Claims: failure to provide lifeguards and knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

Defendant Defenses: No proximate causation

Holding: for the Defendant

Year: 2015

The defendant is a camping area that allows day users in order to access other recreational opportunities at the campground.

The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. T

The plaintiff and friends entered the defendant’s campground and paid an entrance fee. The campground was adjacent to a large lake. There was a swimming area on the campground and roped off in the lake. Outside of the roped area were two large inflatable platforms, one described as a trampoline and the other described as an “iceberg.”

There were no lifeguards at either the defendant’s pool or the lake area. A single sign was posted that warned that there were no lifeguards at the lake.

The plaintiff and a friend entered the designated swimming area for the purpose of swimming out to the trampoline. The trampoline was just beyond the buoy line. The friend made it to the trampoline. However, the plaintiff, deceased never did.

When it was noticed he was missing 911 was called. A firefighter found the deceased floating just below the surface inside the swimming area. A postmortem autopsy determined the cause of death to be “asphyxia due to submersion.”

No one saw the deceased struggling or in distress, and no one saw him drown.

The case went to trial on two theories:

The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

The jury returned a verdict based on the second issue. The defendant filed an appeal.

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

Under Connecticut law to establish a basic or prima facie case, the plaintiff must:

[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] favor.

To win its case the plaintiff must prove negligence.

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.”

The defendants’ defense was no one saw the deceased drown. There was thus no proof of causation.

Interrogatories were provided to the jury. Interrogatories are questions the jury must answer in reaching its decision or in deciding the case. The interrogatory answers seemed to focus on the fight the owner’s manual of the trampoline warned that users should wear life jackets. Life jackets were available to swimmers in a shed on the beach; however, they were not required to be worn.

The plaintiff hired an expert witness who opined that the defendant campground was liable for failing to have safety measures in place, failing to have life guards and failing to have an emergency safety plan. However, these breaches of duty, if true, still had no link to how the decedent died. There was no way to say having one of the missing items identified by the expert witness was not proof that the plaintiff might have lived. “To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct…

The court reversed the jury’s decision because there was no evidence of what happened to the plaintiff. Consequently, there was no relationship, no causal link between the failures to require life jackets to the deceased’s death.

The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.”

The appellate court reversed the jury findings.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what caused this drowning is fatal to the plaintiff’s case.

So Now What?

It is sad when someone dies. However, just because someone dies or a bandage is used, does not mean there is liability and the need to write a check. There must be a connection between something the defendant did wrong and the injury to the victim.

That connection in Connecticut must be an unbroken string of events linking the plaintiff’s injuries to the defendant’s conduct.

 

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