States that allow a parent to sign away a minor’s right to sue.

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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California Civil Code § 1668

Cal Civ Code § 1668

Deering’s California Codes are current through Chapters 1-109 and 111-157 of the 2018 Regular Session and all urgency legislation through Chapter 181 of the 2018 Regular Session.

Deering’s California Codes Annotated > CIVIL CODE > Division 3 Obligations > Part 2 Contracts > Title 4 Unlawful Contracts

§ 1668. Certain contracts unlawful

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

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California statute allowing law enforcement to close land for avalanche risk or emergency.

§ 409.6.  Power of peace officers to close area after avalanche; Unauthorized entry

(a) Whenever a menace to the public health or safety is created by an avalanche, officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, and any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision (f) of Section 830.2, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by that officer to enter or remain within the closed area.

If an avalanche creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions which are set forth above in this section.

(b) Officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2, may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating hazardous conditions created by an avalanche to any and all unauthorized persons pursuant to the conditions which are set forth in this section whether or not that field command post or other command post is located near the avalanche.

(c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within that area, or any unauthorized person who willfully remains within an area closed pursuant to subdivision (a) or (b), after receiving notice to evacuate or leave from a peace officer named in subdivision (a) or (b), shall be guilty of a misdemeanor. If necessary, a peace officer named in subdivision (a) or (b) may use reasonable force to remove from the closed area any unauthorized person who willfully remains within that area after receiving notice to evacuate or leave.

(d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.

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In most you assume the risk of the risks of the sport (but not all) unless the defendant did something to increase that risk to you.

In this case, the defendant was snowboarding without a retention strap. His snowboard got away from him hitting a young girl. The California Appellate Court held this was not a risk the plaintiff assumed when she went skiing.

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

State: California

Plaintiff: Jennifer Campbell

Defendant: Eric Derylo

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 1999

Snowboarders argue they don’t have to wear retention straps because their binding keeps their snowboards attached to them. Snowboard bindings are not releasable. That is true until the Snowboarder sits down to adjust his board or boots and takes his bindings off or tears his bindings off his board.

Working at a ski area you see snowboards coming down the hill that have escaped from boarders.

Most state laws also say that you cannot board a lift without a retention strap.

In this case, the plaintiff was skiing down a run at Heavenly Valley Ski resort. She skied to an icy section and took off her skis and hiked down the icy section. She was sitting on the snow putting her skis back on when the accident occurred.

The defendant was snowboarding on the same run when he encountered the icy section. He sat down to take his snowboard off to walk down the icy section when his snowboard got away from him. The snowboard hit the plaintiff in the lower back.

California does not have a skier safety statute. El Dorado County, the county where Heavenly Valley Ski Resort is located does have a county ordinance requiring all skiers and boarders to have a safety retention strap on their skis and boards.

The skier responsibility code also used by Heavenly requires retention straps.

The plaintiff filed this lawsuit, and the defendant filed a motion for summary judgment based on assumption of the risk. The trial court granted the motion, and the plaintiff appealed.

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

The trial court’s supporting argument for granting the defendant’s motion for summary judgment was:

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

The Appellate court first went to the deciding case in California (and relied upon in most other states) concerning assumption of the risk. Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696]. The California Supreme Court in Knight defined assumption of the risk.

…ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. .) Whether primary assumption of the risk applies depends on the nature of the sport or activity in question and the parties’ relationship to that activity. In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.”

The court then looked at California cases dealing with skiing where assumption of the risk was a basis for the defense.

…assumption of the risk applies to bar recovery for “. . . moguls on a ski run, trees bordering a ski run, snow-covered stumps, and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.”

Knight, Id, however, does not grant immunity to “all defendants participating in sporting activity.” Defendants have a duty of care not to increase the risks to another participate “over and above those inherent in the sport.”

Meaning if you increase the risk of a sport to another participant, you have eliminated the inherent risk from the sport. Inherent risks of a sport are assumed by the participants, whether or not those risks are truly inherent or identified as inherent by statute.

The court then applied a quasi but for test to determine if the actions of the defendants in cases increased the risk unnecessarily. In a baseball game, the actions of the mascot took a spectator’s attention away from the game, and he was hit with a foul bar. The game of baseball could be played without a mascot; therefore, having the mascot increased the risk to the spectators.

In a skiing case you could ski without alcohol. Therefore, skiing drunk increases or changes the risk to the other skiers on the slope placing them at greater risk of a collision. Therefore, the inherent risk of skiing was changed when the defendant was drunk.

The court then looked at the present case as: “the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have  increased the inherent risk of injury to coparticipants from a runaway snowboard.”

The court found that both the county ordinance and the Heavenly Valley Skier Responsibility Code which was posted at the resort require the use of a retention strap. Therefore, there was a demonstrated recognition that retention straps were a necessary safety equipment to reduce the risk of runaway ski equipment.

A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury.

A test in the drunken skier case upheld this conclusion.

[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.”

When you assume the risk, those risks are the normal risks, even if they occur infrequently or rarely. More so, the risks you assume in a sport are not changed by the individual actions of one person.

The defendant also argued there was no proximate cause between this action in taking off his board and the injury the plaintiff suffered because the board could have gotten away from him at any time when he was taking it off to walk down the hill. The court looked at statements from the Defendant’s expert witness to refute that argument.

However, the declaration of plaintiff’s expert established that, used properly; the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident.

The court reversed and sent the case back to the lower court for trial because “We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport.”

So Now What?

The first obvious issue is, do not snowboard without a retention strap or a way to secure your board from getting away. Even if you take your board off to walk down the slope or work on your board/binding you need to secure the board. Skis all have breaks now days, and if you drop a ski on the slope, it will stop.

More importantly, this case looks at the upper limit of assumption of an inherent risk in a sport.

The inherent risks of a sport are those risks that are part and parcel of the sport or activity. Without those risks, the sport would not be what it is. Remove the inherent risks and the sport has no value to the players.

In skiing, most ski area safety statutes have broadened the definition of the inherent risk of skiing to include numerous other risks. Several other state statutes have done the same for other activities.

California has not defined the inherent risk of skiing except through case law. Consequently, each new injury a skier suffers on the slope is defined afterwards by the courts as being an assumed risk or not, rather before the injured guest starts skiing.

Here, the inherent risks of skiing were tightened in California, and I would guess most other courts would come to the same conclusion.

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Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

JENNIFER CAMPBELL, a Minor, etc., Plaintiff and Appellant, v. ERIC DERYLO, Defendant and Respondent.

No. C030104.

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

October 14, 1999, Decided

SUBSEQUENT HISTORY: [***1] Review Denied January 13, 2000, Reported at: 2000 Cal. LEXIS 132.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of El Dorado County. Super. Ct. No. SV1129. Suzanne N. Kingsbury, Judge.

DISPOSITION: The judgment is reversed. Plaintiff shall recover costs.

COUNSEL: Law offices of Edwin E. Williams and Edwin E. Williams for Plaintiff and Appellant.

Caulfield, Davies & Donahue, James R. Donahue and Catherine A. Woodbridge for Defendant and Respondent.

JUDGES: Opinion by Callahan, J., with Kolkey, J., concurring. Blease, Acting P. J., concurred in the result.

OPINION BY: CALLAHAN

OPINION

[*825] [**520] CALLAHAN, J.

Jamie Xelowski, as guardian ad litem of her daughter Jennifer Campbell, a minor, plaintiff, appeals from a judgment granting defendant summary judgment in this negligence action against defendant Eric Derylo. The trial court ruled that the doctrine of primary assumption of risk precluded plaintiff from recovering for injuries [**521] sustained when defendant’s runaway snowboard hit Jennifer in the back. We shall reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 1994, Jennifer, then 11 years old, was skiing down the World Cup [***2] ski run at the Heavenly Valley Ski Resort when she stopped and removed her skis due to ice on the slope. She walked down the remainder of the hill and at the bottom sat down to put her skis back on. At this time defendant Derylo, then age 17, was snowboarding down the same run. He stopped approximately 100 yards from the bottom and removed his snowboard due to fatigue and ice on the slope. After he had removed his feet from the bindings, the snowboard slid out of his control and down the slope, hitting Jennifer in the lower back.

An El Dorado County ordinance, as well as the skier responsibility code posted at Heavenly Valley, require participants to wear a retention strap that attaches to the bindings of the board and is secured to the snowboarder’s leg or boot. For purposes of this motion, it is uncontested that defendant’s snowboard was not equipped with such a strap on the day of the accident.

[*826] Defendant moved for summary judgment on the basis of assumption of risk. The trial court granted the motion on the ground that the danger of being injured by runaway snowboards was inherent in the sport of skiing and there was no evidence of recklessness on the part of defendant. [***3] Plaintiff appeals.

DISCUSSION

(1) [HN1] On appeal from an order granting summary judgment, the reviewing court conducts a de novo examination of the record to determine whether the moving party was entitled to summary judgment as a matter of law or whether genuine issues of material fact remain. ( [HN2] Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App. 3d 205, 212 [285 Cal. Rptr. 717].)

“We independently review the parties’ papers supporting and opposing the motion, using the same method of analysis as the trial court. . . . [HN3] The moving party bears the burden of proving that the claims of the adverse party are entirely without merit on any legal theory. . . . The opposition must demonstrate only the existence of at least one triable issue of fact . . ., and all doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion.” ( Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, 1836 [20 Cal. Rptr. 2d 913], [***4] citations omitted.)

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

(2a) In Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] and its companion case Ford v. Gouin (1992) 3 Cal. 4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724, 34 A.L.R.5th 769], the Supreme Court concluded that the [HN4] ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. ( [HN5] Knight, supra, at pp. 309-310, 314-316.) Whether primary assumption of the risk applies depends on the nature [***5] of the sport or activity in question and the parties’ relationship to that activity. ( Id. at p. 313.) In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.” ( Staten v. Superior Court (1996) 45 Cal. App. 4th 1628, 1635 [53 Cal. Rptr. 2d 657].)

In Knight, a defendant carelessly knocked over a coparticipant and stepped [**522] on her hand during a touch football game. (3 Cal. 4th at pp. 300-301.) The [*827] conduct was deemed an inherent risk of the sport and therefore recovery was barred under primary assumption of risk. ( Id. at p. 321.) The court in Knight reasoned that “. . . vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.” ( Id. at p. 318.)

In the context of skiing, courts have held that primary assumption of the risk applies to bar recovery for “. . . moguls on a ski run ( Knight v. Jewett, supra, 3 Cal. 4th 296, 315-316), trees bordering a ski run ( Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal. App. 3d 111 [266 Cal. Rptr. 749]), [***6] snow-covered stumps ( Wright v. Mt. Mansfield Lift (D.Vt. 1951) 96 F. Supp. 786), and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.” ( O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal. App. 4th 188, 193 [35 Cal. Rptr. 2d 467].) A runaway snowboard resulting from ordinary skier carelessness would seem to fit within the realm of those risks inherent to the sport. 1

1 We quickly dismiss plaintiff’s contention that there is a triable issue over whether plaintiff and defendant were coparticipants. At Heavenly Valley Ski Resort, skiers and snowboarders share the same slope. Both parties were in a designated ski area; moreover, putting on and taking off equipment is an integral part of the sport. Skiing, like ice skating, is a sport which may be engaged in just as well alone as with others. There is no requirement that athletes be acquainted with each other or join together in order to be considered coparticipants within the meaning of Knight. (See Staten v. Superior Court, supra, 45 Cal. App. 4th at p. 1633 [figure skater assumes risk of collision with other skaters even when skating solo, where “proximity to one another created certain risks of collision”].)

[***7] Knight however does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that [HN6] “. . . 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.” (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 of injury above that which is inherent. ( Id. at p. 315.)

The principle is illustrated in the skiing context in Freeman v. Hale (1994) 30 Cal. App. 4th 1388, 1396 [36 Cal. Rptr. 2d 418]. In Freeman the defendant had consumed alcoholic beverages to the point of inebriation prior to skiing. While on the slopes defendant collided with plaintiff coparticipant, rendering her a quadriplegic. ( Id. at p. 1391.) The defendant claimed he was immune from liability because the plaintiff had assumed [***8] the risk of harm by participating in the sport. (Ibid.) The Fourth District reversed summary judgment for the defendant.

[*828] While conceding that inadvertent collisions are an inherent risk of skiing and therefore assumed by participants (30 Cal. App. 4th at p. 1395), Freeman pointed out that the consumption of alcoholic beverages, an activity not ordinarily associated with skiing, may have unnecessarily increased the risk of collision. Furthermore, “the increased risks presented by the consumption of alcohol are not inherent in the sport of skiing.” ( Id. at p. 1396.) A skier has a duty not to increase the risks of the sport beyond those inherent, and summary judgment is improper where the [**523] circumstances suggest that the defendant engaged in activity that increased the risk. ( Id. at p. 1397.)

In Lowe v. California League of Prof. Baseball (1997) 56 Cal. App. 4th 112, 123 [65 Cal. Rptr. 2d 105], the plaintiff was a spectator at a minor league baseball game. He was sitting in an uncovered section of the stadium when a foul ball struck him in the face. Immediately prior to being struck, the [***9] team’s mascot was behind the plaintiff and his tail was hitting the plaintiff on the head and shoulders. The plaintiff turned to see what the mascot was doing and as he was turning back around to face the field, a foul ball hit him. ( Id. at pp. 116-118.)

While agreeing that the risk of being hit with a foul ball was inherent in the sport of baseball and therefore assumed by spectators, the court, relying on Knight, held that the defendant had a duty not to increase the risk of a spectator being struck. ( Lowe v. California League of Prof. Baseball, supra, 56 Cal. App. 4th at p. 123.) Summary judgment was improper because, “. . . whether such antics [by the mascot] increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.” (Ibid.; see also Branco v. Kearny Moto Park, Inc. (1995) 37 Cal. App. 4th 184, 193 [43 Cal. Rptr. 2d 392] [bicycle jump’s unsafe design may have increased risk to bicycle racers].)

Finally, in Yancey v. Superior Court (1994) 28 Cal. App. 4th 558 [33 Cal. Rptr. 2d 777], the court ruled that a participant in discus throwing owed a duty to a coparticipant [***10] to ascertain that the target area was clear before releasing the discus onto the playing field. In reversing summary judgment, the court found that the inherent risks of discus throwing do not include being injured by a discus thrown with no regard for its potential path. ( Id. at p. 566.)

(3a) Here, we are confronted with the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have [*829] increased the inherent risk of injury to coparticipants from a runaway snowboard. 2 The factual showing below demonstrates triable issues of fact.

2 At the hearing on the motion, plaintiff’s counsel listed four separate acts or omissions by defendant which he contended went beyond “ordinary careless conduct” and increased the inherent risk to Jennifer: (1) failure to wear a retention strap; (2) taking the board off on a steep slope without consideration for downhill skiers; (3) failure to move to the edge of the slope before removing his snowboard; and (4) failure to leave one foot in his snowboard and walk down the slope. This appeal focuses solely on the absence of a retention strap. We agree with plaintiff’s implicit concession that each of the other instances of misfeasance mentioned by counsel constitutes mere ordinary negligence which is not actionable under the doctrine of primary assumption of the risk.

[***11] Both El Dorado County Ordinance No. 9.20.040, subdivision A6, and the skier responsibility code which was posted at Heavenly Valley Ski Resort, require the use of a retention strap. These safety regulations demonstrate a recognition that retention straps reduce the risk of injury from runaway ski equipment. As the declaration of plaintiff’s expert explains, this requirement is especially important when it comes to snowboards because, unlike skis which are equipped with automatic braking devices, snowboards have no built-in stopping mechanism. A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury. 3

3 We decline to address the issue of whether Evidence Code section 669, read in conjunction with El Dorado County Ordinance No. 9.20.040, subdivision A6, establishes an independent duty of care which overrides the primary assumption of risk doctrine. The Supreme Court granted review in Cheong v. Antablin (1997) 16 Cal. 4th 1063 [68 Cal. Rptr. 2d 859, 946 P.2d 817], purportedly to settle this question, but ended up avoiding it by concluding that the ordinance evinced “no clear intent to modify common law assumption of risk principles.” ( Id. at p. 1069.) As evidenced by the four separate concurring opinions in Cheong (including one by the author of the majority opinion, Justice Chin), there appears to be no clear consensus on the high court about this issue.

[***12] [**524] (2b) Our conclusion is consistent with the test advanced by Freeman to determine what risks are inherent in a sport: [HN7] “[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (30 Cal. App. 4th at p. 1394.) Freeman found that “[t]he consumption of alcoholic beverages could be prohibited during or shortly before skiing without fundamentally altering the nature of the sport.” ( Id. at p. 1396.) The doctrine of primary assumption of risk was not an absolute bar to recovery because the risks associated with skiing while under the influence of alcohol are not inherent in the sport and thus not assumed by fellow participants.

[*830] In Lowe the court used similar reasoning, to conclude that “. . . the antics of the mascot are not an essential or integral part of the playing of a baseball [***13] game,” and “the game can be played in the absence of such antics.” (56 Cal. App. 4th at p. 123.)

Thus, “. . . the key inquiry here is whether the risk which led to plaintiff’s injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game.” ( Lowe v. California League of Prof. Baseball, supra, 56 Cal. App. 4th at p. 123.) (3b) Use of a mandatory retention strap would not impede or alter the sport of snowboarding. On the contrary, retention straps can be used “without fundamentally altering the nature of the sport.” ( Freeman v. Hale, supra, 30 Cal. App. 4th at p. 1396.) Furthermore, use of a retention strap would in no way chill or deter vigorous participation in skiing or snowboarding. ( Knight v. Jewitt, supra, 3 Cal. 4th at p. 317.)

Defendant claims that he was entitled to summary judgment in any event, because he would necessarily have removed the strap in order to walk down the slope. According to this argument, the board would have hit plaintiff regardless of whether it was equipped with a strap. Defendant is essentially arguing that proximate cause [***14] was lacking as a matter of law.

However, the declaration of plaintiff’s expert established that, used properly, the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident. The record therefore presents a triable issue as to whether defendant’s use of a snowboard without a retention strap was the proximate cause of plaintiff’s injuries. Since all inferences in a summary judgment dispute are to be drawn in favor of the party opposing the motion ( Tully v. World Savings & Loan Assn. (1997) 56 Cal. App. 4th 654, 660 [65 Cal. Rptr. 2d 545]), defendant did not eliminate proximate cause as a triable issue.

We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport. The doctrine of primary assumption of the risk is not an absolute bar to recovery on these facts, because the lack of a retention strap could be found by a jury to have increased the risk of harm to plaintiff beyond what was inherent in the sport of skiing. Defendant [***15] also did not establish as a matter of law that the lack of a retention strap was not a proximate cause of plaintiff’s injuries. Accordingly, summary judgment was improperly granted.

[*831] [**525] DISPOSITION

The judgment is reversed. Plaintiff shall recover costs.

Kolkey, J., concurred. Blease, Acting P. J., concurred in the result.

Respondent’s petition for review by the Supreme Court was denied January 13, 2000. Kennard, J., and Chin, J., were of the opinion that the petition should be granted.


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

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