Your release cannot use the term “inherent risk” as the description of the risks, it creates no release at all.

California appellate court reviews numerous issues brought by plaintiff in this skier v. skier fatality. Most important issue is the relationship between Assumption of the Risk in California and a Release.

Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

State: California, Court of Appeal of California, Fourth Appellate District, Division Three

Plaintiff: Grant Tuttle et al.

Defendant: Heavenly Valley, L.P.

Plaintiff Claims:

Defendant Defenses: doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

Holding: for the defendant

Year: 2020


Skier died after being hit by snowboarder coming out of terrain park. Descendant’s heirs could not sue because the release stated the descendant assumed the risk of her injuries. Case is still ongoing.

Discussion by the court provides great analysis of the different types of risk assumed and the differences between inherent risks and other risks.


On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.2 The release begins with an all-capital advisement: “WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS.”

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

It is unknown what happened to the lawsuit against the snowboarder.

The actual facts on how the trial proceeded are convoluted and not in the normal course of trials. The appellate court recognized this and found although the proceedings were different, the outcome was correct.

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

The court first reviewed release law in California. The main issue the court found was the relationship between a release in California and the inherent risks of a sport. The court made this statement, which should be known by everyone in the outdoor industry.

But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all.

When you play sports, explore the woods or ski, just three examples, you assume the risk of the inherent risks of the sport. If your release only identifies inherent risks as the risks, the release protects against, you release is protecting you from things you are already protected against. A plaintiff cannot sue you for the inherent risks of the activity.

Your release is written, or should be written, to protect you from all the other risks of an activity. Risks such as those created by equipment, guides or decision’s guides or participants make. Those are risks that are probably not inherent to the sport and a such; you are liable for those risks.

The court did an extensive analysis of these issues. The foundation case is Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, a California Supreme Court decision that has been quoted in hundreds of cases in most states and laid down the definitions of the different types of risk and how a person assumes those different risks.

Knight and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

The issue in the law then becomes has the defendant done something to change the inherent risks or said another way increased the risk to the participants. The participant assumes the inherent risks and others, but not to the extent the risk has been increased. You cannot assume gross negligence, for example.

A ski resort operator “still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not ‘inherent’ in the sport.” This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.

The balance between the risks in the sport that create the excitement and define the sport versus actions of the defendant in controlling or presenting the sport in such a way the risks cannot be assumed by the participants.

The court then compared the issues of increasing the risk and comparative fault. Comparative fault is how the jury or trier of fact determines who is actually liable and in what percentages for the injuries of the plaintiff.

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the “plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable” and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s “injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.”

The court then reviewed the relationship between comparative fault and how that is affected when a release is used.

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

The court then clarified its statement defining how a court looks at how the defenses are applied to the facts.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself.

Court added further clarification to its statement.

A valid release “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” The legal issue in an express assumption of the risk case “‘is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.'”

In assumption of the risk, the plaintiff must know the risks they are assuming. A release removes that actual knowledge from the analysis.

Additionally, a plaintiff does not need to have “‘specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] “‘reasonably related to the object or purpose for which the release is given.'”

The court then looked at the limits of protection a release provides. That limit is defined as gross negligence.

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.

If the defendant engages in gross negligence, that is outside of the protection afforded by the release.

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment.

The court then recapped its comparison of the legal issues in a case involving inherent and other risks and a release.

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

There is a lot more discussion in the case about the procedural issues and how the trial was handled. There is no need to discuss these here.

So Now What?

This is a difficult case to read and understand, however, if you can parse the procedural arguments from the assumption of the risk and release arguments, it is extremely educational in explaining the relationship between the plaintiff and defendant in a case like this.

Simply put there is a hierarchy of defenses available to a business or program in the outdoor recreation industry. There is no fine line between them, in fact, it is a massive gray area, that changes when you move from state to state.

  • Inherent Risks of the Activity
  • Assumption of the Risk
  • Release

Nor are the defenses entirely separate from each other. And if used properly they can be effectively used to support and define each other.

Your website can help explain the risks, inherent and otherwise. Your release can identify specific risks, which may not be apparent to some or for which some may argue they did not know and understand. Your safety talk can define the inherent risks of the activity to make sure those are known by participants.

When writing a release or assumption of the risk agreement, those written documents need to take in all aspects of the risks and make sure nothing in your program or marketing derails your defense wall.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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By Recreation Law    James H. Moss

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