South Dakota in Federal District Court decision seems to allow a release to stop the claims for a minor.

Release was effective in stopping ordinary negligence claims; however, the gross negligence claims were allowed to continue.

Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

State: South Dakota, United States District Court for the District of South Dakota, Western Division

Plaintiff: Brad Reed, Individually and as Joint Limited Conservators of I.R., a Minor; and Tara Reed, Individually and as Joint Limited Conservators of I.R., a Minor

Defendant: Union Resort, LLC, dba Mystic Miner

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

Holding: For both plaintiff and defendant, but proceeding to trial

Year: 2018

Summary

The minor child was injured on a tubing hill when her tube stopped in the middle of the hill, and she was hit and injured by her brother coming after her. The release the parents signed stopped the ordinary negligence claim but under South Dakota, law did not stop a claim for gross negligence.

There was no discussion in the decision as to whether the release stopped the claims of the minor child, the injured plaintiff. It just seemed to be taken for granted by the court, or at least not argued by the plaintiffs.

Facts

On March 13, 2015, Brad and Tara Reed brought their children to the defendant’s resort near Lead, South Dakota, for an afternoon of recreational snow tubing.1 The resort was owned and operated by Union Resort, LLC, dba Mystic Miner. Among the Reeds’ children with them that day was seven-year-old I.R. Accompanying the Reeds were another couple and Alex, a social worker from the Philippines.

Upon arriving shortly before noon, the Reed party entered the lodge area where customers are required to check in and purchase admission tickets for the resort. The Reeds purchased snow tubing day passes for themselves and their children, including I.R. As a condition of allowing I.R. to use the resort, Union required the Reeds to agree to a written release of liability. The Reeds signed the release and printed the names of each of their children, including I.R., as participants.

The Reeds understood the document was a release of liability agreement and that, by signing, they would be relinquishing certain unspecified rights. They did not ask any questions about the release. The release informed resort participants that tubing activities are extremely hazardous and can result in personal injury. The Reeds understood that tubing carried with it a degree of risk, including risk of trauma to the head, and that I.R. would be exposed to this risk.

After signing the release and paying the admission fee, the Reeds and their kids received individual tickets for the tube park. Those tickets included additional warnings.

At the resort, there are numerous bright red signs that provide instructions and warnings to participants. Among the messages on some of the signs was a warning that collisions with other tubers was one of the dangers of tubing. Other signs instructed the tubers to follow the attendant’s instructions and to wait for the attendant’s signal before starting [down the tube run]. The Reeds do not recall whether they saw or read any of these signs.

The Reeds were directed to select tubes from the resort’s selection of tubes, which they did. Defendant had approximately 50 to 70 tubes in inventory at the time, but there is no evidence how many of these tubes had already been selected by prior guests. No employee of defendant selected the tubes for the Reeds. Several defendant employees testified at their depositions that it was a practice at the resort to leave tubes with tears in the bottoms in circulation for guests to use. The employees explained that such tubes were slower and slower equated to safer in their minds.

During the Reeds’ stay at the resort, they went down the tube runs approximately 15 to 20 times. Two of the four tube runs at the resort were open that day. During the Reeds’ runs, there were two defendant employees at the bottom of the tube runs assisting guests with the tow rope (which towed guests to the top of the run).

On approximately two of the Reeds’ 15-20 tubing runs, there was a young man at the top of the tube runs who also appeared to be a resort employee with a radio in his possession. However, the young man never monitored the tube runs, never gave instructions to tubers, and never staged tubers going down the tube runs. “Staging” means controlling the entry of guests onto the tube runs to ensure that the prior tuber has finished the run and cleared the area before the next tuber is allowed to begin his or her descent. There was no staging and, instead, tubers decided themselves when to begin their descent, a situation Brad Reed described as a “free-for-all.”

At approximately 2 p.m., the Reeds decided to take one last run down the tube runs before leaving the resort. Up to this point, the Reeds had experienced no concerns or incidents. Up to this final run, I.R. had always completed her run down the slope as part of a group or with one of her parents. On the final run, she asked to be allowed to go down the tube run by herself, to which her parents agreed. Mrs. Reed told I.R. they would go down the run together, parallel to each other in each of the two open tube runs. At this point, Alex was directly behind I.R. in line for the same tube lane. Mr. Reed was behind Alex in the same line.

Once both lanes were clear, Mrs. Reed and I.R. began their descents. Mrs. Reed went all the way down the run, but I.R.’s tube stopped approximately 3/4 of the way down the slope. While I.R. was stopped, Alex began her descent before I.R. cleared the lane. When Alex’s tube reached I.R.’s tube, they collided. No defendant employee told Alex to begin her descent, but no defendant employee was present at the top of the run to tell her, instruct her, or prevent her from beginning her descent until I.R. cleared the lane.

From the top of the slope, Mr. Reed testified Alex should have been able to see I.R. had not cleared the lane had Alex been paying attention. Mr. Reed himself was able to observe the collision from his vantage point at the top of the slope.

After the accident, the Reeds observed an approximately 8-inch hole in the bottom of I.R.’s tube that had filled with snow. Defendant asserts it was its policy to stow the tubes under the deck each night and to pull them out the next day for guests’ use. Defendant asserts employees were directed to observe the tubes for significant tears or defects and to remove defective tubes during this process. However, several defendant employees testified they left tubes with tears in their bottoms in rotation for guest use because the tears would slow the tuber down as they descended the slope. Employees believed a slower descent was a safer descent.

If a lightweight child descended the slope with a tube with a tear in it, sometimes the tube would stop mid-way down the slope and a defendant employee would have to walk up the slope to retrieve the child. In such an instance, the defendant employee at the bottom of the slope would radio the employee at the top and tell them to stop sending guests down the slope until the child was retrieved and taken to the bottom.

No photograph was taken of I.R.’s tube at the beginning of the day, after the accident, or at any other time on the day of the accident. It is unknown if the tear in the bottom of her tube was there from the start of the day or whether the tear occurred during the Reeds’ use of the tube that day. The Reeds mixed and mingled the various tubes they checked out, so several members of the Reeds’ group could have used the accident tube at various times of the day.

The accident tube was the only tube checked out by the Reed group that had a tear in it. The Reeds did not notice the tear until after I.R.’s injury. The Reeds did not inform anyone at the resort about the tear in the tube after the accident occurred. There is no evidence that any defendant employee had specific knowledge that the Reeds had checked out a tube with a tear in it on the day of the accident, though defendant employees had general knowledge that such tubes were often retained in inventory because they were perceived to be “safer” because they were slower.

From the beginning of the 2010-11 season through the end of the 2014-15 season, defendant had incident reports of 17 collisions of tubers. During that same time frame, there were 72 total incident reports.3 Several of these collisions between tubers occurred within a few weeks and, in two examples, a few days, of I.R.’s collision. Specifically, there were 5 incident reports involving collisions between tubers going down the tube lane between December 30, 2014, and February 27, 2015. None of defendant’s incident reports record whether a hole in a tube contributed to the incident.

Defendant maintains that it had a proper protocol of having at least one employee at the top of the tube run and one employee at the bottom of the tube run at all times. The employee at the top of the tube run was supposed to “stage” the tubers going down. The employee at the bottom of the tube run would retrieve items lost by tubers going down the slope (hats, mittens, etc.) and also retrieve guests whose tubes stopped without fully descending the slope.

The Reeds assert defendant was chronically understaffed and that defendant made a deliberate decision not to station an employee at the top of the tube run the day of I.R.’s accident. Defendant asserts the Reeds have no evidence to support the assertion that the decision not to station an employee at the top of the tube run was a deliberate decision.

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

The plaintiff’s conceded that the release barred their claims for negligence, the first count in their complaint. That left the issue of whether the release barred their claims for gross negligence and whether they had pled enough facts to support a gross negligence claim.

Gross negligence under South Dakota law is the same as willful and wanton conduct:

Under South Dakota law, the phrase “gross negligence” is synonymous with the phrase “willful and wanton misconduct.” Both phrases refer “to a category of tort that is different in kind and characteristics than negligence.” Negligence occurs when one acts with an “unreasonable risk of harm to another.” Willful and wanton misconduct requires a risk of harm that is “substantially greater than that which is necessary to make the conduct negligent.” The threatened harm “must be an easily perceptible danger of death or substantial physical harm.”

The major difference between ordinary negligence and gross negligence is the mental state of the defendant.

In addition, proof of a negligence claim focuses on the ordinary standard of care, while a gross negligence claim focuses on the defendant’s mental state. A defendant acts willfully and wantonly when it knows or has reason to know at the time of its actions of the dire risk and proceeds without concern for the safety of others. The standard does not require proof of intent to harm, but it does “partake to some appreciable extent … of the nature of a deliberate and intentional wrong.” Gross negligence requires “an affirmatively reckless state of mind.” There must be “a conscious realization that a serious physical injury was a probable, as distinguished from a possible (ordinary negligence), result of such conduct.”

That creates a two-step test to determine if the defendant was grossly negligent.

Summarizing the above case law, gross negligence is distinguished from ordinary negligence by two factors. The risk of harm must be greater for gross negligence—whereas under ordinary negligence, the risk of harm can be anything from negligible harm to death, the risk of harm for gross negligence must be death or serious harm. Secondly, the likelihood that harm will come about, phrased in terms of the defendant’s state of mind, must be greater. For example, if there is a 10 percent chance some harm will happen and the defendant fails to take steps to ensure that harm does not come about, he is merely negligent. If there is an 85 percent chance serious harm or death will happen and the defendant fails to take steps to ensure the harm does not occur, he has acted willfully and wantonly or with gross negligence.

The court’s analysis of the chance of the harm occurring is a way of looking at the differences between ordinary and gross negligence that I have never seen before.

The court looked at the facts as presented by both sides and found both lacking the information the court felt would prove the plaintiff’s case. However, the court made this statement.

Under the law of gross negligence, South Dakota has recognized a plaintiff will rarely have direct evidence of the defendant’s state of mind. Rather, state of mind must be inferred from the circumstances. Id. Also, under the law of summary judgment, all inferences from the facts must be made in favor of the nonmoving party, Both sources of law, then, support taking the Reeds’ view of the inference to be drawn from the fact that defendant was chronically understaffed and did not have an employee stationed at the top of the tube run at the time of I.R.’s accident.

So, with the inferences created by the plaintiffs about the state of mind of the tubing hill, the court held that there was enough information plead to allow the gross negligence claim to continue.

The court then looked at the assumption of the risk argument made by the defendant. There was no case law in South Dakota stating that assumption of the risk was a defense to gross negligence, so the court held that assumption of the risk would not stop the gross negligence claim.

So Now What?

What did not arise in this case is whether the release stopped the claims of the minor child. The case was captioned as the parents suing on behalf of their minor child. In that regard, the release would bar the claims of the parents. However, this is a different way of suing on behalf of a minor, not away normally done in most states any more.

Also, this is a decision by a Federal District Court applying South Dakota law so, whether a not a release stops a minor’s claims is probably still up in the air until the South Dakota Supreme Court decides the issue.

However, it is a decision to lean on if you have participants who are minors in your program.

The other issues are classic situations where the defendant looks at a situation one way as a positive for patrons but the injured patron is able to turn the situation around and use it as a club against the defendant. Torn tubes were regarded by the defendant as good because they were slower than the other tubes. However, a torn tube is not a product that is 100%, in the condition it was received from the manufacturer. It was a defective product. So, the plaintiff was able to show the defendant was derelict in using them.

If they placed the tubes in a different location with a sign that said, slower tubes it might have been helpful.

What do you think? Leave a comment.

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Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

United States District Court for the District of South Dakota, Western Division

November 15, 2018, Decided; November 15, 2018, Filed

5:17-CV-05047-JLV

Reporter

Brad Reed, Individually and as Joint Limited Conservators of I.R., a Minor; and Tara Reed, Individually and as Joint Limited Conservators of I.R., a Minor; Plaintiffs, vs. Union Resort, LLC, dba Mystic Miner, Defendant.

Subsequent History: Objection overruled by, Adopted by, Summary judgment granted by, in part, Summary judgment denied by, in part Reed v. Union Resort, LLC, 2019 U.S. Dist. LEXIS 49327 (D.S.D., Mar. 25, 2019)

Counsel:  [*1] For Brad Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Tara Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Plaintiffs: Kenneth E. Barker, LEAD ATTORNEY, Barker Wilson Law Firm, LLP, Belle Fourche, SD.

For Union Resort, LLC, doing business as Mystic Miner, Defendant: Shane E. Eden, LEAD ATTORNEY, Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, SD.

Judges: VERONICA L. DUFFY, United States Magistrate Judge.

Opinion by: VERONICA L. DUFFY

Opinion

REPORT AND RECOMMENDATION

INTRODUCTION

This matter is before the court on the amended complaint of Brad and Tara Reed as conservators of I.R., their minor daughter. See Docket No. 16. The Reeds allege claims of negligence and gross negligence against defendant Union Resort, LLC, dba Mystic Miner (defendant) arising out of a tubing accident at defendant’s ski resort. Id. This matter rests on the court’s diversity jurisdiction, 28 U.S.C. § 1332.

Defendant has now filed a motion for summary judgment. See Docket No. 21. The Reeds oppose the motion. See Docket No. 30. The motion was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B), the order of referral dated November 11, 2018 (Doc. 42), and the [*2]  October 16, 2014, standing order of the Honorable Jeffrey L. Viken, Chief United States District Judge.

FACTS

Defendant filed a statement of undisputed material facts, Docket No. 22, to which the Reeds have responded, Docket No. 31. The following facts have been drawn from those pleadings with disputes or discrepancies as noted.

On March 13, 2015, Brad and Tara Reed brought their children to the defendant’s resort near Lead, South Dakota, for an afternoon of recreational snow tubing.1 The resort was owned and operated by Union Resort, LLC, dba Mystic Miner. Among the Reeds’ children with them that day was seven-year-old I.R. Accompanying the Reeds were another couple and Alex, a social worker from the Philippines.

Upon arriving shortly before noon, the Reed party entered the lodge area where customers are required to check in and purchase admission tickets for the resort. The Reeds purchased snow tubing day passes for themselves and their children, including I.R. As a condition of allowing I.R. to use the resort, Union required the Reeds to agree to a written release of liability. The Reeds signed the release and printed the names of each of their children, including I.R., as participants. [*3] 

The Reeds understood the document was a release of liability agreement and that, by signing, they would be relinquishing certain unspecified rights. They did not ask any questions about the release. The release informed resort participants that tubing activities are extremely hazardous and can result in personal injury. The Reeds understood that tubing carried with it a degree of risk, including risk of trauma to the head, and that I.R. would be exposed to this risk.

After signing the release and paying the admission fee, the Reeds and their kids received individual tickets for the tube park. Those tickets included additional warnings.

At the resort, there are numerous bright red signs that provide instructions and warnings to participants. Among the messages on some of the signs was a warning that collisions with other tubers was one of the dangers of tubing. Other signs instructed the tubers to follow the attendant’s instructions and to wait for the attendant’s signal before starting [down the tube run]. The Reeds do not recall whether they saw or read any of these signs.

The Reeds were directed to select tubes from the resort’s selection of tubes, which they did. Defendant had approximately [*4]  50 to 70 tubes in inventory at the time, but there is no evidence how many of these tubes had already been selected by prior guests. No employee of defendant selected the tubes for the Reeds. Several defendant employees testified at their depositions that it was a practice at the resort to leave tubes with tears in the bottoms in circulation for guests to use. The employees explained that such tubes were slower and slower equated to safer in their minds.

During the Reeds’ stay at the resort, they went down the tube runs approximately 15 to 20 times. Two of the four tube runs at the resort were open that day. During the Reeds’ runs, there were two defendant employees at the bottom of the tube runs assisting guests with the tow rope (which towed guests to the top of the run).

On approximately two of the Reeds’ 15-20 tubing runs, there was a young man at the top of the tube runs who also appeared to be a resort employee with a radio in his possession. However, the young man never monitored the tube runs, never gave instructions to tubers, and never staged tubers going down the tube runs. “Staging” means controlling the entry of guests onto the tube runs to ensure that the prior tuber has [*5]  finished the run and cleared the area before the next tuber is allowed to begin his or her descent. There was no staging and, instead, tubers decided themselves when to begin their descent, a situation Brad Reed described as a “free-for-all.”

At approximately 2 p.m., the Reeds decided to take one last run down the tube runs before leaving the resort. Up to this point, the Reeds had experienced no concerns or incidents. Up to this final run, I.R. had always completed her run down the slope as part of a group or with one of her parents. On the final run, she asked to be allowed to go down the tube run by herself, to which her parents agreed. Mrs. Reed told I.R. they would go down the run together, parallel to each other in each of the two open tube runs. At this point, Alex was directly behind I.R. in line for the same tube lane. Mr. Reed was behind Alex in the same line.

Once both lanes were clear, Mrs. Reed and I.R. began their descents. Mrs. Reed went all the way down the run, but I.R.’s tube stopped approximately 3/4 of the way down the slope. While I.R. was stopped, Alex began her descent before I.R. cleared the lane. When Alex’s tube reached I.R.’s tube, they collided. No defendant [*6]  employee told Alex to begin her descent, but no defendant employee was present at the top of the run to tell her, instruct her, or prevent her from beginning her descent until I.R. cleared the lane.

From the top of the slope, Mr. Reed testified Alex should have been able to see I.R. had not cleared the lane had Alex been paying attention. See Docket No. 25-5 at p. 7 (depo. pp. 25-26). Mr. Reed himself was able to observe the collision from his vantage point at the top of the slope. Id. at p. 6 (depo. pp. 22-24).2

After the accident, the Reeds observed an approximately 8-inch hole in the bottom of I.R.’s tube that had filled with snow. Defendant asserts it was its policy to stow the tubes under the deck each night and to pull them out the next day for guests’ use. Defendant asserts employees were directed to observe the tubes for significant tears or defects and to remove defective tubes during this process. However, several defendant employees testified they left tubes with tears in their bottoms in rotation for guest use because the tears would slow the tuber down as they descended the slope. Employees believed a slower descent was a safer descent.

If a lightweight child descended the slope with [*7]  a tube with a tear in it, sometimes the tube would stop mid-way down the slope and a defendant employee would have to walk up the slope to retrieve the child. In such an instance, the defendant employee at the bottom of the slope would radio the employee at the top and tell them to stop sending guests down the slope until the child was retrieved and taken to the bottom.

No photograph was taken of I.R.’s tube at the beginning of the day, after the accident, or at any other time on the day of the accident. It is unknown if the tear in the bottom of her tube was there from the start of the day or whether the tear occurred during the Reeds’ use of the tube that day. The Reeds mixed and mingled the various tubes they checked out, so several members of the Reeds’ group could have used the accident tube at various times of the day.

The accident tube was the only tube checked out by the Reed group that had a tear in it. The Reeds did not notice the tear until after I.R.’s injury. The Reeds did not inform anyone at the resort about the tear in the tube after the accident occurred. There is no evidence that any defendant employee had specific knowledge that the Reeds had checked out a tube with [*8]  a tear in it on the day of the accident, though defendant employees had general knowledge that such tubes were often retained in inventory because they were perceived to be “safer” because they were slower.

From the beginning of the 2010-11 season through the end of the 2014-15 season, defendant had incident reports of 17 collisions of tubers. During that same time frame, there were 72 total incident reports.3 Several of these collisions between tubers occurred within a few weeks and, in two examples, a few days, of I.R.’s collision. Specifically, there were 5 incident reports involving collisions between tubers going down the tube lane between December 30, 2014, and February 27, 2015. None of defendant’s incident reports record whether a hole in a tube contributed to the incident.

Defendant maintains that it had a proper protocol of having at least one employee at the top of the tube run and one employee at the bottom of the tube run at all times. The employee at the top of the tube run was supposed to “stage” the tubers going down. The employee at the bottom of the tube run would retrieve items lost by tubers going down the slope (hats, mittens, etc.) and also retrieve guests whose [*9]  tubes stopped without fully descending the slope.

The Reeds assert defendant was chronically understaffed and that defendant made a deliberate decision not to station an employee at the top of the tube run the day of I.R.’s accident. Defendant asserts the Reeds have no evidence to support the assertion that the decision not to station an employee at the top of the tube run was a deliberate decision.

DISCUSSION

A. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The court must view the facts, and inferences from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)); Helton v. Southland Racing Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). Summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994).

The burden is placed on the moving party to establish both the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Once the movant has met its burden, the nonmoving party may not simply rest on the allegations in the pleadings, but [*10]  must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Anderson, 477 U.S. at 256; Fed. R. Civ. P. 56(e) (each party must properly support its own assertions of fact and properly address the opposing party’s assertions of fact, as required by Rule 56(c)).

The underlying substantive law identifies which facts are “material” for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice And Procedure § 2725, at 93-95 (3d ed. 1983)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48.

Essentially, the availability of summary judgment turns on whether a proper jury question is presented: “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine [*11]  factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.

B. Does the Release Signed by the Reeds Bar Their Claims?

Defendant’s first argument in favor of its summary judgment motion is that the clear and plain language of the release signed by the Reeds bars their claims and that there is no overriding public policy that serves to neutralize the release.

South Dakota law4 provides that a valid release of liability bars claims for ordinary negligence, but does not bar claims for gross or willful negligence or recklessness. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 792-93 (S.D. 2000). The Reeds do not argue that the release was invalid in any way or that the activity I.R. was engaged in when she was injured was outside the scope of the release. In fact, the Reeds concede that their first claim in their amended complaint for ordinary negligence is barred by defendant’s release. See Docket No. 30 at p. 5. Accordingly, the court recommends that defendant’s motion for summary judgment as to the Reeds’ claim for ordinary negligence, count one of the amended complaint, be granted.

C. Are There Material Factual Disputes as to Gross Negligence?

Defendant argues the facts alleged [*12]  by the Reeds, even if true, allege a claim for ordinary negligence only, not gross negligence. Thus, since ordinary negligence is barred by the release, defendant argues it should be granted summary judgment on the Reeds’ gross negligence claim too.

Under South Dakota law, the phrase “gross negligence” is synonymous with the phrase “willful and wanton misconduct.” Fischer v. City of Sioux Falls, 919 N.W.2d 211, 2018 SD 71, 2018 WL 4779267 at *2 (S.D., 2018). Both phrases refer “to a category of tort that is different in kind and characteristics than negligence.” Id. Negligence occurs when one acts with an “unreasonable risk of harm to another.” Id. (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 34, at 212 (5th ed. 1984)). Willful and wanton misconduct requires a risk of harm that is “substantially greater than that which is necessary to make the conduct negligent.” Id. The threatened harm “must be an easily perceptible danger of death or substantial physical harm.” Id. (all quotes from Fischer cleaned up).

In addition, proof of a negligence claim focuses on the ordinary standard of care, while a gross negligence claim focuses on the defendant’s mental state. Id. 2018 SD 71, [WL] at *3. A defendant acts willfully and wantonly when it knows or has reason to know at the time of its actions [*13]  of the dire risk and proceeds without concern for the safety of others. Id. The standard does not require proof of intent to harm, but it does “partake to some appreciable extent … of the nature of a deliberate and intentional wrong.” Id. Gross negligence requires “an affirmatively reckless state of mind.” Id. There must be “a conscious realization that a serious physical injury was a probable, as distinguished from a possible (ordinary negligence), result of such conduct.” Id. (all quotes from Fischer cleaned up).

The evidence must show more than “mere mistake, inadvertence, or inattention . . . there need not be an affirmative wish to injure another, but, instead, a willingness to injure another.” Gabriel v. Bauman, 2014 SD 30, 847 N.W.2d 537, 541 (S.D. 2014)). Generally, whether the facts constitute gross negligence is a question of fact “if reasonable minds might differ in interpreting the facts in arriving at different conclusions on whether the defendant was willful, wanton, or reckless.” Id. at 542. “Because willfulness, wantonness, or recklessness is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. Id. at 542-43.

Summarizing the above case law, gross negligence [*14]  is distinguished from ordinary negligence by two factors. The risk of harm must be greater for gross negligence—whereas under ordinary negligence, the risk of harm can be anything from negligible harm to death, the risk of harm for gross negligence must be death or serious harm. Fischer, 2018 SD 71, 2018 WL 4779267 at *2. Secondly, the likelihood that harm will come about, phrased in terms of the defendant’s state of mind, must be greater. For example, if there is a 10 percent chance some harm will happen and the defendant fails to take steps to ensure that harm does not come about, he is merely negligent. If there is an 85 percent chance serious harm or death will happen and the defendant fails to take steps to ensure the harm does not occur, he has acted willfully and wantonly or with gross negligence.

The Reeds posit three facts in support of their assertion the defendant in this case acted grossly negligent (or willfully and wantonly) with regard to I.R. First, the defendant had a practice of leaving tubes with tears in the canvas bottoms in rotation for guests to use because the torn tubes were slower and, therefore, in the eyes of defendant’s employees, safer. Second, the defendant knew the importance of staging—having [*15]  an employee at the top of the tube run to meter the guests as they descended the slope so that one guest could clear the run before the next guest began descending—but made a deliberate decision not to station an employee at the top of the tube run on the day of I.R.’s accident. And, finally, the existence of prior collisions on the tube run put the defendant on notice of the likelihood of harm.

Neither party speaks to the magnitude of the harm which, as discussed above, is one of the two factors distinguishing ordinary negligence from gross negligence. The defendant does not cite facts or circumstances to show that the prior collisions were minor bump-and-bruise types of encounters. The Reeds do not cite facts or circumstances to show the prior collisions resulted in concussions, closed head injuries, broken bones, surgeries or hospitalizations. The Reeds have supported their assertion that I.R.’s injuries were sufficiently serious—a fractured skull–something defendant does not dispute. Because the moving party has the burden, the court makes all inferences in favor of the nonmoving party. Accordingly, the court infers that previous accidents were sufficiently severe in nature to [*16]  satisfy the standard required for gross negligence.

Likewise, with regard to the number of prior incidents, neither party has placed into the record what the total number of tubers was during the period of time covered by the incidents. This fact goes to the likelihood of a collision—for gross negligence, there must be a greater probability of harm occurring than is the case with ordinary negligence. If 17 collisions occurred between fall of 2010 and March 15, 2015, and there were 5,000 tubers during that time, the number of prior accidents takes on one type of significance. But the significance of the number of prior accidents is different if the total number of tubers during that time frame is 100, 300, or even 500. There is a significantly bigger risk of harm the smaller the total number of tubers. Although the defendant alleges there were “thousands” of tubers, it has not supported that assertion with citation to an affidavit, deposition, or authenticated document. Again, there is a lack of evidence.

Also, neither party describes the scope of defendant’s incident reports. Do they encompass all kinds of incidents—those attributable to conditions on the slopes within defendant’s control [*17]  as well as incidents attributable to factors not within defendant’s control? Do they encompass heart attacks and strokes as well as collisions? Do the reports include drunken brawls between guests as well as injuries inflicted when a tow bar snaps?

Furthermore, is there any evidence suggesting that not all collisions at defendant’s resort are documented in incident reports? Are the incident reports the tip of the iceberg—or are they truly representative of all injuries occurring at defendant’s resort?

Finally, defendant does not dispute that no employee was stationed at the top of the tube run at the time of I.R.’s accident. The Reeds assert that defendant was “chronically understaffed” and that defendant made a “deliberate decision” not to place an employee at the top of the tube run that day. The Reeds have amply supported their assertion that defendant was chronically understaffed, with the result that positions that should have been filled by employees were left unattended. See Docket Nos. 33-4, 33-5, & 33-8. The Reeds also supplied testimony that, when there were not enough employees, the defendant prioritized putting an employee at the bottom of the tube slope rather than at the [*18]  top of the slope. See Docket No. 33-4 at p. 5 (depo p. 20). From these two facts, the Reeds infer that defendant made a “deliberate decision” the day of the accident not to place an employee at the top of the tube slope to stage the tubers.

Defendant disputes that it made a “deliberate decision” not to have an employee staging the tubers that day. Defendant’s disagreement with the Reeds’ assertion is based solely on the fact that they do not have testimony from any witness stating outright that a calculated decision was made. Defendant seems to assert that the Reeds may not rely upon an inference, but must have affirmative evidence of the fact a “deliberate decision” was made.

The court makes two observations. Under the law of gross negligence, South Dakota has recognized a plaintiff will rarely have direct evidence of the defendant’s state of mind. Gabriel, 847 N.W.2d at 542-43. Rather, state of mind must be inferred from the circumstances. Id. Also, under the law of summary judgment, all inferences from the facts must be made in favor of the nonmoving party. Matsushita Elec. Co., 475 U.S. at 587-88. Both sources of law, then, support taking the Reeds’ view of the inference to be drawn from the fact that defendant was chronically understaffed and did [*19]  not have an employee stationed at the top of the tube run at the time of I.R.’s accident.

Defendant attempts to eliminate a genuine issue of fact as to the presence of a staging employee by asserting that there was in fact an employee at the top of the tube hill with a radio. See Docket No. 34 at p. 6. In support of this assertion of fact, defendant cites Mr. and Mrs. Reeds’ depositions and argues they cannot claim a version of facts more favorable than their own testimony, an old chestnut of South Dakota Law.

Reading the Reeds’ depositions, however, leads one to conclude defendant’s assertion is, if not outright untrue, certainly misleading. Both Mr. and Mrs. Reed testified no one was at the top of the hill staging the tubers at the time of I.R.’s accident. Docket No. 27-1 at p. 10 (depo. p. 30); Docket No. 27-5 at p. 7 (depo. p. 25). Prior to the accident, both the Reeds had observed a young man with a radio they assumed was defendant’s employee at the top of the hill during one or two of the Reed party’s previous 15-20 tube runs. However, the young man never provided instruction to the tubers about when to go down the slope—he was not staging the tubers. Docket No. 27-1 at p. 10 (depo. [*20]  pp. 39-40). Thus, the Reeds have sustained their assertion of fact that defendant had no employee stationed at the top of the tube hill to stage tubers at the time of I.R.’s accident.

Defendant’s motion is decided with resort to two veins of law. First, the law applicable to summary judgment. As the movant, defendant has the burden to show that there are no genuine disputes of material fact and that, based upon those undisputed facts, it is entitled to judgment as a matter of law. All of the absences of crucial fact detailed by the court above cut against defendant as the moving party. Furthermore, all of the inferences from the facts that are present in the record must be drawn in favor of the Reeds. Applying those standards to the issue before the court, the conclusion is inescapable that there are genuine issues of material fact existing which prevent summary judgment in defendant’s favor.

The second vein of law which comes into play is the dictate of South Dakota law that, ordinarily, questions of whether a defendant acted with gross negligence are questions of fact for the jury if reasonable minds could differ as to the inferences to draw from the known facts. Gabriel, 847 N.W.2d at 542. That is the situation [*21]  here. The court recommends that defendant’s motion for summary judgment on the Reeds’ gross negligence claim be denied.

D. Are There Material Factual Disputes as to Assumption of the Risk?

Defendant’s final argument in favor of its summary judgment motion is that the Reeds assumed the risk of their daughter’s accident as a matter of law, thereby relieving defendant of any liability. The court addresses the first question apparent by defendant’s argument: whether assumption of the risk is even a defense to a claim of gross negligence. As legal authority for its position, defendant cites only the Restatement (Second) of Torts 496A, cmt. d (1965), and a dissenting opinion in Barger for Wares v. Cox, 372 N.W.2d 161, 170-71 (S.D. 1985) (Wuest, J., dissenting). See Defendant’s Brief, Docket No. 23 at pp. 29-30. Neither of these authorities represent binding South Dakota law.

The Reeds in their brief do not address the issue of whether assumption of the risk is a defense to a claim of gross negligence. They argue only that assumption of the risk is a quintessential issue of fact for the jury. See Docket No. 30 at pp. 13-14.

In the Holzer case discussed previously, the plaintiff signed defendant’s release of liability form which defendant called an “assumption of the risk” form. Holzer, 610 N.W.2d at 790. The court held [*22]  in that case that liability releases only serve to protect defendants from claims of ordinary negligence, not from claims of gross negligence. Id. at 793. However, the title the defendant chose to give its release form is not dispositive of the question in this case.

The South Dakota Supreme Court has said that when a defendant’s actions are merely negligent, the defense of contributory negligence applies. But when the defendant’s conduct is willful and wanton, the defense of contributory negligence does not apply. Carlson v. Johnke, 57 S.D. 544, 234 N.W. 25, 27-28 (S.D. 1931), overruled on other grounds Wittstruck v. Lee, 62 S.D. 290, 252 N.W. 874, 877 (S.D. 1934) (clarifying that it did not adopt the doctrine of comparative negligence in Johnke).

In a dissenting opinion in another case, Justice Henderson stated that while assumption of the risk was a defense to ordinary negligence, the plaintiff would nonetheless have recourse for willful or wanton acts of a defendant. Johnson v. Rapid City Softball Ass’n. , 514 N.W.2d 693, 703 (S.D. 1994) (Henderson, J., dissenting). See Rantapaa v. Black Hills Chair Lift Co., 2001 SD 111, 633 N.W.2d 196, 204 (S.D. 2001) (assumption of the risk is an affirmative defense to an ordinary negligence claim).

The court has found no South Dakota case directly on point addressing whether the defense of assumption of the risk applies to grossly negligent or willful and wanton conduct. Defendant cites § 496A, comment d, of the Restatement (Second) of Torts for the proposition that the defense is [*23]  available here. The section cited stands for the proposition that assumption of the risk is a defense to both ordinary negligence and to reckless conduct. The section does not address gross negligence or willful and wanton conduct. However, it is true that the South Dakota Supreme Court has, at times, used the word “reckless” interchangeably with “gross negligence” and “willful and wanton.”

If assumption of the risk is a defense to a claim of gross negligence, it is a subjective standard. Duda v. Phatty McGees, Inc., 2008 SD 115, 758 N.W.2d 754, 758 (S.D. 2008). Defendant has the burden to prove that “the particular plaintiff in fact sees, knows, understands and appreciates” the specific risk that caused the injury. Id. The defendant must prove three elements: (1) the plaintiff had actual or constructive knowledge of the risk; (2) the plaintiff appreciated its character; and (3) the plaintiff voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice. Id. “A person is deemed to have appreciated the risk if it is the type of risk that no adult of average intelligence can deny.” Id. (quoting Westover v. East River Elec. Power Coop., Inc., 488 N.W.2d 892, 901 (S.D. 1992)) (cleaned up).

The Restatement states that a plaintiff who knows generally of a danger does not necessarily assume the risk if [*24]  the danger appears to be slight or negligible. See
Restatement (Second) Torts §496D, cmt. b. The Restatement also echoes what South Dakota law establishes: because the standard for assumption of the risk is a subjective one based on whether the plaintiff knows of the existence of the risk as well as understands its magnitude and unreasonable character, the question of assumption of the risk is almost always a question of fact for the jury to decide. Id.; Ray v. Downes, 1998 SD 40, 576 N.W.2d 896, 900 (S.D. 1998).

Here, the Reeds have established that neither they nor their children had ever been tubing before the day they visited defendant’s resort. See Docket No. 27-1 at p.3 (depo. p. 12). They anticipated that tubing at defendant’s resort would be safe, fun and would build family memories. See Docket No. 33-1 at p. 103. Furthermore, there is no evidence produced by defendant showing that the Reeds anticipated, understood, and accepted the risk that defendant would provide no employee at the top of the tube run to stage the tubers—contrary to defendant’s own policy and its prominent signage at the resort (i.e. follow attendant’s instructions when going down the tube run).

The defense of assumption of the risk is a subjective one. There are material issues of fact as to what the [*25]  Reeds knew and appreciated in terms of the risk they and I.R. would encounter when tubing at defendant’s resort. Assuming that the defense applies at all to a claim of gross negligence, the court concludes summary judgment is inappropriate on this record.

Conclusion

Based on the foregoing facts, law and analysis, this magistrate judge respectfully recommends granting in part and denying in part defendant’s motion for summary judgment, Docket No. 21. Specifically, the court recommends defendant’s motion should be granted as to plaintiff’s claim for ordinary negligence, but recommends defendant’s motion should be denied as to plaintiff’s claim for gross negligence.

Notice To Parties

The parties have fourteen (14) days after service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).

DATED November 15, 2018.

BY THE COURT:

/s/ Veronica L. Duffy

VERONICA L. DUFFY

United States Magistrate Judge


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

Summary

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.

Facts

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.

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

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

Tuttle v. Heavenly Valley, L.P.

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

February 5, 2020, Opinion Filed

G056427

Reporter

2020 Cal. App. Unpub. LEXIS 814 *; 2020 WL 563604

GRANT TUTTLE et al., Plaintiffs and Appellants, v. HEAVENLY VALLEY, L.P., Defendant and Respondent.

Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

Subsequent History: Request denied by Tuttle v. Heavenly Valley, L.P., 2020 Cal. LEXIS 2940 (Cal., Apr. 29, 2020)

Prior History:  [*1] Appeal from a judgment and post judgment orders of the Superior Court of Orange County, Ct. No. 30-2015-00813230, Nathan R. Scott, Judge.

Disposition: Affirmed.

Counsel: The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

Judges: DUNNING, J.*, BEDSWORTH, ACTING P. J., MOORE, J. concurred.

Opinion by: DUNNING, J.

Opinion

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.1 Defendant asserted as defenses the 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.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant “unreasonably increased the risks . . . over and above [*2] those inherent in the sport of skiing.” The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

A judgment in plaintiffs’ favor typically would have followed as a matter of course unless defendant formally moved for, and was granted, a judgment notwithstanding the verdict (JNOV). However, the trial court determined the jury’s factual finding that defendant was not grossly negligent, coupled with its legal conclusion that the release provided a complete defense to plaintiffs’ lawsuit, compelled entry of a judgment in defendant’s favor, even without a posttrial JNOV motion.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first [*3]  formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Release

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.” Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing “can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH.” In paragraph 2, she “ASSUME[D] ALL RISKS . . . known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions; . . . variations in terrain; design and condition of man-made facilities and/or terrain features; . . . [and] collisions.” Paragraph 5 advised: “The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably [*4] avoided without changing the nature of the Activities.”

Paragraph 6 included Tuttle’s express agreement “NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY . . . for . . . injury or loss to [her], including death.” This paragraph specifically advised that Tuttle was releasing all “CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE . . . .” In paragraph 13, Tuttle agreed the release was “binding to the fullest extent permitted by law . . . on [her] heirs, next of kin, executors and personal representatives.”

II.

The Accident and the Lawsuit

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.

Plaintiffs sued defendant and Slater.3 Defendant raised the defenses of implied and express assumption of the risk: (1) “any injury, loss or damage purportedly sustained . . . by Plaintiffs was directly [*5]  and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated”; (2) “Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury”; and (3) defendant “is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.”

III.

The Jury Trial

The jury trial spanned five weeks.4 The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant “unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing” and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered “yes” to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel was not making any changes to the special verdict form.

The following day, at the close of evidence and outside the [*6] jurors‘ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.5 The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: “So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.”

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant “we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.”

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the [*7] special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: “[Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and—release of liability and waiver was executed—existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated.” (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: “What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent [*8] risks of skiing, and that’s what the release
releases. It does not release gross negligence. It does not release what we’re talking about.”

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could “end up finding that the release was not valid” and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as “the release in evidence releases
negligence. And the questions on the verdict form
go [] to gross negligence, and—this doesn’t have to do with the release, but the increase of unreasonable risk.” Defendant’s counsel remarked the “dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form.” Plaintiffs’ counsel concurred: “Right.” Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. [*9]  Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, “[a]t the end of the day, it’s a simple exercise. That jury form . . . . [¶] . . . If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them—you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.”

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

The Special Verdict

As to defendant, the special verdict form included three liability questions, three damages questions, and three comparative fault/apportionment of liability questions. The liability questions read as follows:

“3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

“Yes X No __

“4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

“Yes __ No X

“If you answered ‘Yes’ to either question 3 or 4, then answer question [*10]  5. [¶] If you answered ‘No’ to both questions 3 and 4, and also answered ‘No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

“If you answered ‘Yes’ to both questions 1 and 2, and answered ‘No’ to both questions 3 and 4, insert the number ‘0’ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

“5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

“Yes X No __”

Because the jury answered “yes” to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2,131,831, with Tuttle and defendant sharing equal responsibility.

Immediately after polling the jurors, the trial court asked plaintiffs’ counsel to prepare the judgment and submit it the next morning. The trial court then thanked and discharged the jury without objection from trial counsel. No one noted on the record that express assumption of the risk was a complete defense to the jury’s verdict.

V.

Entry of a Defense Judgment

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1,065,915.50, plus costs and [*11] interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided “a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.”6

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release “clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle.” The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: “[D]efendant has prevailed on the express assumption issue and ‘negate[d] the defendant’s duty of care, an element of the plaintiff’s case.'”

The trial court acknowledged “the structure” of [*12] the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

Plaintiffs’ Post judgment Motions

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: “It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint.” (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ [*13] substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence,7 the special verdict was “hopelessly contradictory” because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ post judgment motions. Plaintiffs timely appealed.

DISCUSSION

I.

The Release Covered Tuttle’s Accident.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754, 29 Cal. Rptr. 2d 177.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so “the scope of a release is determined by [its] express language.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357, 129 Cal. Rptr. 2d 197 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. [*14]  (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490, 72 Cal. Rptr. 3d 471 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291, 66 Cal. Rptr. 3d 704 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

A.

Overview: Assumption of the Risk

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (Knight)8 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.9 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. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367, 59 Cal. Rptr. 2d 813 (Allan).) 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.

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 [*15]  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.” (Allan, supra, 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra, 3 Cal.4th at p. 308.)

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. (Knight, supra, 3 Cal.4th at p. 314.) 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.” (Ibid.; see Allan, supra, 51 Cal.App.4th at p. 1367.)

A different analysis applies when a skier [*16] 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.

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. 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.” (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) 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 [citations], but simply the scope of the Release.'” (Hass, supra, 26 Cal.App.5th at p. 27.)

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 [*17] 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.'” [Citation.]’ [Citation.] As we have said, ‘[t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.'” (Cohen, supra, 159 Cal.App.4th at p. 1485; see Allan, supra, 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement “to ‘shoulder the risk’ that otherwise might have been placed” on the ski resort operator].)

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. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, 62 Cal. Rptr. 3d 527, 161 P.3d 1095 (Santa Barbara).)

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, [*18] 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.

B.

Analysis

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only [*19] concern is “‘whether the release in this case negated the duty element of plaintiffs’ causes of action.'” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719, 183 Cal. Rptr. 3d 234.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra, 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed “ALL RISKS associated with [skiing], known or unknown, inherent or otherwise.” She also agreed not to sue defendant and to release it “FROM ALL LIABILITY . . . BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE.” No more was required.

Defendant’s use of the phrase, “inherent or otherwise” did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, “[t]he term ‘otherwise,’ when ‘paired with an adjective or adverb to indicate its contrary’ . . . is best understood to mean ‘NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing.” (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release “bears many similarities to the release” in Cohen, supra, 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently [*20]  and “unexpectedly provoke[d] a horse to bolt and run without warning” (id. at p. 1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement “‘to assume responsibility for the risks identified herein and those risks not specifically identified.'” (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted “the trial court apparently granted summary judgment on the theory that the risks ‘not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding.” (Cohen, supra, 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use “the word ‘negligence‘ or any particular verbiage . . . [it] must inform the releasor that it applies to misconduct on the part of the releasee.” (Id. at pp. 1488-1489.) The release in Cohen used the word “negligence” only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release [*21] also did not “indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities.” (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra, 159 Cal.App.4th at p. 1494-1495.)

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence. (Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4.)

The release in Zipusch, supra, 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court [*22]  of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra, 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra, 26 Cal.App.5th at p. 18.)

Addressing the release, Hass held: “By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk [*23]  of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the [plaintiffs’] wrongful death claim for ordinary negligence.”10 (Hass, supra, 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid release and no gross negligence by defendant, the issue of inherent risk was no longer relevant. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 353, 235 Cal. Rptr. 3d 716 [where the doctrine of express assumption of risk applies, implied assumption of the risk is no longer considered].)

II.

Enforcement of the Release Does not Violate California’s Public Policy.

Plaintiffs next argue the release‘s exculpatory language violates California’s public policy. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of “aggravated” negligence.

Plaintiffs argue Santa Barbara, supra, 41 Cal.4th 747 “left open the question of whether public policy precludes the contractual release [*24]  of other forms of ‘aggravated’ misconduct, in addition to gross negligence.” (Some capitalization omitted.) The argument is raised for the first time on appeal; it has no merit.

In Santa Barbara, a parent signed an agreement releasing the defendants from liability for “‘any negligent act'” related to her child’s participation in summer camp. (Santa Barbara, supra, 41 Cal.4th at p. 750.) The child drowned. (Ibid.) The trial court denied the defendants’ motion for summary judgment based on the release, and the appellate court denied defendants’ petition for writ of mandate challenging that ruling. (Id. at p. 753.) The sole issue before the Supreme Court was “whether a release of liability relating to recreational activities generally is effective as to gross negligence.” (Id. at p. 750.)

The defendants argued California law, specifically Civil Code section 1668,11 impliedly allowed recreational activity releases to be enforced against a claim of gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 762-763.) At the time, no published California decision “voided[] an agreement purporting to release liability for future gross negligence.” (Id. at p. 758.) The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. (Id. at pp. 760-762.)

References in Santa Barbara to “aggravated [*25]  wrongs” (a term used by Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 484) (Santa Barbara, supra, 41 Cal.4th at pp. 762, 765, 776) and “aggravated misconduct” (id. at pp. 760, 762, 777, fn. 54) do not suggest a new species of negligence that might affect a liability release for recreational activities. Rather, those phrases encompassed misconduct that included gross negligence and willful acts. (Id. at p. 754, fn. 4.) As the majority held, “the distinction between ‘ordinary and gross negligence‘ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776.) With a valid release, “a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to [the] plaintiffs.” (Santa Barbara, supra, 41 Cal.4th at p. 781.)

Here, no public policy considerations preclude the enforcement of defendant’s recreational activity release that exculpated it from liability for its own ordinary negligence. (Knight, supra, 3 Cal.4th at p. 309, fn. 4.)

III.

The Trial Court did not Err by Entering Judgment in Favor of Defendant.

Plaintiffs argue the trial court should have entered judgment in their favor regardless of the jury’s finding concerning gross negligence because the jury made findings on damages and apportioned fault [*26] between Tuttle and defendant. They contend the responsibility to seek a JNOV or some other post judgment remedy should have fallen to defendant, not plaintiffs. But once the trial court determined the special verdict was not inconsistent and Tuttle’s express release provided a complete defense as a matter of law, entry of a defense judgment was proper. Even if the trial court erred in entering a defense judgment without a formal motion for JNOV, any error was harmless.

A.

Legal Principles Governing Special Verdicts

A special verdict must include “conclusions of fact as established by the evidence . . . [so] that nothing shall remain to the Court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.) A special verdict is not a judgment. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332, 104 Cal. Rptr. 3d 219, 223 P.3d 77.) If a special verdict includes findings on inconsistent theories, the findings on the legal theory that does not control the outcome of the litigation “may be disregarded as surplusage.” (Baird v. Ocequeda (1937) 8 Cal.2d 700, 703, 67 P.2d 1055.) Additionally, “where no objection is made before the jury is discharged, it falls to ‘the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.'” (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457, 72 Cal. Rptr. 217, 445 P.2d 881; see Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092, 74 Cal. Rptr. 3d 235.)

B.

The Trial Court’s Ruling

As noted, the jury [*27] was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court recognized and fulfilled its duty to interpret the special verdict: “After [this] court rejected several unilateral proposals, the parties stipulated to a special verdict form. . . . But they did so before the court construed the release in response to defendant’s nonsuit motion and before the parties stipulated Ms. Tuttle entered into the release. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. Question #4 asked whether defendant acted with gross negligence. [¶] The answer ‘NO’ to either Question #3 or #4 exonerates defendant. Answering ‘No’ to Question #3 would foreclose the only relevant exception to the primary assumption defense. Answering “NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. [¶] But the form allowed the jurors to answer ‘YES’ to one question and ‘NO’ to [the] other one and continue to answer questions, including determining and allocating damages.” (Italics and bold [*28] omitted.)

The trial court further explained: “Here, the specific finding that defendant did not act with gross negligence controls over the general award of damages. The jury was properly instructed with the definition of gross negligence. The jury received percipient and expert testimony that, if credited, showed defendant did not act with gross negligence. The parties argued whether defendant [did] or did not act with gross negligence. The answer ‘NO’ to Question #4 unambiguously shows the jury found defendant did not act with gross negligence. That resolved the only factual question on the express assumption issue in favor of defendant. [¶] . . . [¶] The award of damages is not a hopeless inconsistency so much as it is mere surplusage once the court honors the jury’s unambiguous finding that defendant acted without gross negligence and draws the legal conclusion—a conclusion that [the] jury was not asked to draw—that the release covers these claims and effects an express assumption of the risk.”

The trial court also correctly concluded the “jury’s findings on Question[] #3 and Question #4 [were not] irreconcilable. The concept of unreasonably increasing inherent risks is distinct [*29] from the concept of gross negligence. In a particular case, the same facts that show an unreasonable increase in the inherent risks may also show gross negligence. [Citation.] Overlap is possible, [but not] necessary. In this case, the jury found no such overlap. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. And that, after five weeks of trial, is what happened here.”

C.

Analysis

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. (Santa Barbara, supra, 41 Cal.4th at p. 781.) 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. Accordingly, Question No. 3 concerning [*30] whether defendant unreasonably increased the inherent risk should have been removed from the special verdict form.

Also, the special verdict form should have instructed the jury that if it found defendant was not grossly negligent, it should not answer the remaining questions. The jury’s compliance with the trial court’s instructions and consequent damages-related findings were surplusage, but did not create an inconsistency with its finding that defendant did not act with gross negligence. The trial court correctly entered judgment in favor of defendant based on the dispositive finding of no gross negligence. The trial court’s explanation of its ruling demonstrates the trial court’s application of the correct legal principles in doing so.

In their appellate opening brief, plaintiffs argue defendant forfeited any objection to the special verdict form because it (1) failed to object to the special verdict before the jury was discharged; (2) invited the erroneous instructions in the special verdict form because it had participated in drafting it; and (3) failed to bring “a statutorily authorized post-trial motion” challenging the special verdict form. Although the special verdict form [*31] should have been amended before deliberations, there is no issue of forfeiture or invited error on defendant’s part.

The parties jointly agreed on the wording of the special verdict form. Any fault in the drafting cannot be assigned to one side over the other, and all parties bear responsibility for the erroneous directions in the stipulated special verdict form. Nothing in the record suggests the special verdict form or the objection to entry of a plaintiffs’ judgment was the product of gamesmanship. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183, 79 Cal. Rptr. 2d 657.)

Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. As part of the discussion pertaining to the parties’ stipulation, however, both the trial court and defendant’s trial counsel questioned the adequacy of the special verdict form. But plaintiffs’ trial counsel maintained the special verdict form was fine “as is” and persuasively argued against making any changes or advising the jury of the stipulation. This meant the doctrine of implied secondary assumption of the risk was not relevant unless the jury found defendant acted with gross negligence.

We agree the procedural [*32] aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; but the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law. Under these circumstances, it would have been a waste of resources to require defendant, or the trial court on its own initiative, to formally notice a motion for JNOV (Code Civ. Proc., § 629, subd. (a)).

Even if we found the procedure to have been erroneous, the error would have been procedural, not substantive; and, plaintiffs have not demonstrated the likelihood of a different outcome. (See Webb v. Special Electric, Co., Inc. (2016) 63 Cal.4th 167, 179, 202 Cal. Rptr. 3d 460, 370 P.3d 1022 [because the defendant “did not have a complete defense as a matter of law, the entry of JNOV was unjustified [on the merits]. In light of this conclusion, we need not reach plaintiffs’ claims of procedural error”].) Defendant had a complete defense; there is no reasonable probability the trial court would have denied a formal JNOV motion.

Plaintiffs argue they relied on the state of the special verdict form in making the decision to stipulate to the validity of the release agreement. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from [*33] the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Such an argument is without support in the law. It is also belied by the record. As already discussed, both defendant’s counsel and the trial court raised questions concerning the special verdict form once the parties stipulated to Tuttle’s execution of the release. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form.

IV.

Plaintiffs are not Entitled to a New Trial.

Plaintiffs argued in their motion for new trial that the special verdict was “hopelessly contradictory” and, consequently, against the law. Plaintiffs also asserted there were errors in the special verdict form, they “excepted to” those errors, but then were penalized because “the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley.” Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. 431,12 to which they agreed, [*34]  misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence.

On appeal, plaintiffs ask this court to reverse the denial of their motion for a new trial. They fail to cite applicable authorities to support their arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Instead, they contend “the trial court changed the rules of the game only after the game had already been played, leaving the parties and their counsel without the opportunity to satisfy those new rules, and robbing the jury of the ability to assess all viable liability options.” Plaintiffs add they stipulated to Tuttle’s execution of the release “in reliance on the wording of the then existing Special Verdict form, which . . . made clear that a finding of gross negligence was only one of two disjunctive liability paths, and was not necessary to impose liability against Heavenly. As a consequence, [plaintiffs] . . . were . . . induced into a stipulation concerning that issue in light of the wording of the existing Special Verdict form, an unfair sequence which the trial court itself acknowledged worked against [plaintiffs].” This characterization [*35] misstates the record.

First, the trial court made legal rulings throughout trial when called upon to do so. The trial court did not change any of its pronouncements of law after the trial concluded. The record shows the trial court gave the parties every opportunity to revisit the jury instructions and special verdict form before they were given to the jury.

Second, although the trial court described the sequence of events, it did not suggest the events were unfair or “worked against” plaintiffs. As discussed ante, when the trial court denied defendant’s renewed motion for nonsuit, it advised counsel the jury must decide whether Tuttle actually executed the release. Because neither side proposed jury instructions or questions on the special verdict form addressing the issue of contract formation, defendant’s counsel suggested they should revisit both the jury instructions and the special verdict form. Plaintiffs’ trial counsel immediately stipulated to Tuttle’s execution of the release and advised he would “proceed with the verdict form as is.” This statement calls into question plaintiffs’ claim they were induced into entering into the stipulation.

Third—and significantly—plaintiffs’ [*36] counsel did not discuss disjunctive liability paths in his closing arguments. Instead, plaintiffs’ counsel focused on the evidence and urged the jury to find gross negligence: “What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release
releases. It does not release gross negligence. It does not release what we’re talking about.”

The jury unanimously found defendant did not act with gross negligence. The jury’s function is to make ultimate findings of fact, and it is the trial court’s responsibility to apply the law to the relevant findings of fact. Nothing in the special verdict form misled the jury with regard to the factors it should consider in making any particular finding. We conclude the trial court correctly applied the law and entered judgment accordingly.

DISPOSITION

The judgment and post judgment orders are affirmed. Respondents shall recover costs on appeal.

DUNNING, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

 


Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.

Association resource guide is used against the defendants to prove the plaintiff’s case.

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois

Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation

Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium

Defendant Defenses: failure to state a claim and release

Holding: For the defendant

Year: 2018

Summary

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Facts

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.

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

The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence

The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

The court first looked at the definition of recklessness and gross negligence.

The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The key point is the failure must be an intentional failure. The plaintiff must establish that the defendant consciously acted or failed to act. “Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.

To prove gross negligence Pennsylvania laws requires a deviation from the standard of care.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary standard of care.”

Normally the trier of fact, the jury must make this decision. However, Pennsylvania courts are allowed to decide this issue if the facts are “entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”

Normally, to prove the defendant’s duty, expert testimony is required to establish the standard of care that the defendant failed to meet and how the expert deviated from that standard of care.

The plaintiff hired to experts that provided opinions as to the actions of the defendant. The first expert opined that the actions of the defendant were beyond the standard of care, but never provided an opinion about what the standard of care was.

DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

The second expert did not set forth any standards of care.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

The simple negligence claims were barred by a release. The plaintiff argued on appeal that the release was void because it did not specifically name in the release one of the defendants. However, the court found that the language in the release, “and their owners” was sufficient to cover the defendant when not specifically named in the release.

There was a dissent in this case. The dissent argued the plaintiff should win because the warning on the mats used to decelerate the tubes stated that vinyl tubes were not to be decelerated by mats or other devices. The dissent also argued the opinions of the experts did provide enough information for a decision about the recklessness and gross negligence of the defendants.

In my view, Appellants have put forth enough evidence at this stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

So Now What?

The plaintiff was rendered a quadriplegic by the accident so a lot of money was at stake. The plaintiff did not hire experts correctly or did not explain what was needed from the experts. This first rule of pleading is proving your case legally on the paperwork and then prove it in the record. The plaintiff failed to do that.

The biggest hurdle was the association resource guide. The National Ski Area Association created a resource guide for tubing hills. The dissenting judge called it the standard of care. The resource guide did not contain any information on using devices to slow tubes. The resource guide said you should have a sufficient run out.

The court did not see the issue as using a mat to slow participants as a violation of the standard to use a run out.

That was the close one in this case.

What do you think? Leave a comment.

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Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

Bourgeois v. Snow Time, Inc.

 

 

Superior Court of Pennsylvania

August 14, 2018, Decided; August 14, 2018, Filed

No. 1086 MDA 2017

Reporter

2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

RAY M. BOURGEOIS AND MARY ANN I. BOURGEOIS, Appellants v. SNOW TIME, INC. AND SKI ROUNDTOP OPERATING CORPORATION

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History:  [*1] Appeal from the Order Entered June 19, 2017. In the Court of Common Pleas of York County Civil Division at No(s): 2015-SU-001900-71.

Judges: BEFORE: OTT, J., DUBOW, J., and STRASSBURGER,* J. Judge Ott joins the memorandum. Judge Strassburger files a dissenting memorandum.

Opinion by: DUBOWS

Opinion

MEMORANDUM BY DUBOW, J.:

Appellants, Ray M. Bourgeois and Mary Ann I. Bourgeois, appeal from the Order entered in the York County Court of Common Pleas granting the Motion for Summary Judgment filed by Appellees, Snow Time, Inc. and Ski Roundtop Operating Corporation.1 Appellants challenge the trial court’s finding that Appellants could not establish that Appellees acted recklessly or with gross negligence. After careful review, we agree with the trial court that Appellants failed to provide an expert report that articulated a relevant standard of care. As a result, Appellants failed to establish that Appellees had a duty to Appellants and, thus, acted recklessly or were grossly negligent in placing deceleration mats at the end of the tubing run. We affirm the Order of the trial court.

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen [*2]  mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Appellants filed a Complaint against Appellees on July 24, 2015, asserting claims for negligence, gross negligence, recklessness, and loss of consortium.

On February 14, 2017, Appellees filed a Motion for Summary Judgment, which the trial court granted on June 19, 2017.

This timely appeal followed. Appellants filed a court-ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial court filed a Pa.R.A.P. 1925(a) Opinion, incorporating its Opinion in Support of the Order granting the Motion for Summary Judgment.

Appellants raise the following issues for our review:

1. Did the trial court err in granting [Appellees’] Motion for Summary Judgment when it disregarded [Appellants’] liability expert reports, which support the conclusion that, based on the evidence of record, that in placing large rubber kitchen mats, folded in half, on the snow and in the path of its patrons who were traveling at high speeds, [Appellees] acted recklessly and/or with gross negligence? [*3] 

2. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, by holding that, as a matter of law, [Appellees] were not reckless and/or grossly negligent, in that the trial court disregarded genuine issues of material fact showing recklessness and/or gross negligence, including but not limited to the following:

(a) the manufacturer of the inner tube [Appellees] provided Mr. Bourgeois specifically warned [Appellees] not to place obstacles, such as large folded rubber kitchen mats, in the path of tubing participants;

(b) [Appellees] deliberately placed obstacles-large, heavy, folded kitchen mats that [Appellees] knew were not designed for snow tubing and which would cause tubing participants to come to an abrupt stop during high-speed conditions-directly in Mr. Bourgeois’s path;

(c) [Appellees] knew that folding the large mats made them obstacles as the mats were fixed heavy masses that protruded high off the surface of the snow;

(d) [Appellees] had actual and/or constructive knowledge of similar incidents involving the folded kitchen mats prior to Mr. Bourgeois’s catastrophic accident;

(e) [Appellees] acknowledged in their written warnings that their tubing runs-including [*4]  their use of large rubber mats to stop speeding tubing patrons-posed a risk of grievous injury or death to its patrons; and

(f) the risk of grave harm posed by the folded rubber kitchen mats to [Appellees’] snow tubing patrons was obvious and readily apparent to a reasonable person?

3. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, in that the trial court relied upon the testimony of [Appellees’] own employees-in contravention of the Nanty-Glo[]2 holding-to conclude as a matter of law that [Appellees] did not know or have reason to know that using folded kitchen mats to bring its fast-moving snow-tubing patrons to an abrupt stop did not pose a risk of serious bodily harm or death to its patrons?

4. Did the trial court err in granting [Appellees’] Motion for Summary Judgment as to [Appellee] Snow Time, Inc., when (a) the Release signed by Mr. Bourgeois did not name Snow Time as a signatory, and (b) there were genuine issues of fact that [Appellee] Snow Time directly participated and acted negligently with regard to Mr. Bourgeois?

Appellants’ Brief at 6-7.

Issues 1 and 2 – Summary Judgment

In their first two issues, Appellants argue that the trial court erred [*5]  in granting Appellees’ Motion for Summary Judgment by disregarding the conclusions of their experts that Appellees’ conduct was reckless and grossly negligent. Appellants’ Brief at 35, 42. In support, Appellants emphasize certain evidence and argue that the record contains genuine issues of material fact that make the grant of summary judgment inappropriate. Based on the following discussion, however, we find that Appellants did not establish a prima facie claim for recklessness or gross negligence and thus, the trial court did not err in granting summary judgment on these issues.

Our standard of review of the grant of a Motion for Summary Judgment is as follows. We “may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (Pa. 2010). However, when there are no genuine issues as to any material fact and the only issue on appeal is a question of law, our standard of review is de novo.” Id.

In order to survive a motion for summary judgment, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 737 (Pa. 1998) (citation omitted). If the non-moving [*6]  party fails to establish one of the essential elements of her claim, the movant has valid grounds for summary judgment. Babb v. Ctr. Cmty. Hosp., 2012 PA Super 125, 47 A.3d 1214, 1223 (Pa. Super. 2012) (citation omitted).

It is well-established that when a trial court considers a motion for summary judgment that includes an expert report, the trial court must determine, inter alia, whether the expert sufficiently supports his conclusions in his expert report:

At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. This clearly includes all expert testimony and reports submitted by the non moving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact.

Summers, supra at 1161 (citations omitted).

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial [*7]  court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the mats at the bottom of hills for snow tubers. . . . The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Appellant] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Ct. Op., 7/19/17, at 18-19. The trial court similarly found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. Appellants challenge these conclusions.

We first turn to the definitions of recklessness and gross negligence. The Pennsylvania Supreme Court, citing the [*8]  Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012), citing
Restatement (Second) of Torts § 500 (emphasis added). Therefore, an element of recklessness is the failure of the defendant to do any act that he has a duty to do for the plaintiff.

That failure, however, must be an intentional failure. In other words, a plaintiff must establish that a defendant consciously acted or failed to act. Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.” Id.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary [*9]  standard of care.” Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (Pa. Super. 1991).

Generally, it is for the jury to determine whether a party acted grossly negligent. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616, 621 (Pa. Super. 1984). However, a court may decide this question as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence. Id.

Expert testimony is often required to opine about a defendant’s duty to the plaintiff, i.e., the standard of care that defendant failed to meet. In particular, an expert must opine about the relevant standard of care, the manner in which defendant’s actions deviated from the standard, and the manner in which that deviation caused the plaintiff’s harm. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (Pa. 2003) (medical expert report must describe standard of care so as to establish duty, breach of duty, and causation). See also Zokaites Contracting Inc. v. Trant Corp., 2009 PA Super 35, 968 A.2d 1282, 1287 (Pa. Super. 2009) (in a professional negligence action, expert testimony is required to establish the “relevant standard of care applicable to the rendition of the professional services” and that the defendant’s conduct fell below that standard); Truax v. Roulhac, 2015 PA Super 217, 126 A.3d 991, 997-99 (Pa. Super. 2015) (discussing plaintiff’s use of an engineer’s expert testimony to establish the elements of negligence in a premises liability action).3 If the expert fails to provide the required information, a trial [*10]  court may conclude that the report is insufficient as a matter of law. Id.

We now turn to the theory of Appellants’ case. Appellants allege in their Complaint, inter alia, that Appellees’ use of folded deceleration mats at the base of its tubing run was reckless and grossly negligent because the use of the mats caused Appellant’s snow tube to stop suddenly and unexpectedly, resulting in the serious injuries that Appellant sustained. Appellants assert the same theory on appeal by arguing that Appellees engaged in reckless and grossly negligent conduct when they placed “large, heavy rubber mats in [Appellant’s] path … and that the mats could bring [Appellant] to an abrupt, immediate stop.”4
See Appellants’ Brief at 36.

In support of Appellants’ response to Appellees’ Motion for Summary Judgment, Appellants presented two expert reports that concluded that Appellees engaged in reckless and grossly negligent conduct. Neither expert, however, set forth a relevant standard of care and, thus, the duty that Appellees failed to meet.

Appellants’ first expert, Mark DiNola, is an expert in the field of ski and snow tubing risk management. When addressing Appellees’ standard of care, he did so generally [*11]  and failed to articulate a specific standard of care or industry standard for the use of deceleration mats in a tubing run-out area. In particular, DiNola first concluded generally that Appellees’ “decision to use deliberately deployed folded anti-fatigue rubber mats as a deceleration device constitutes an extreme departure from the ordinary standards of conduct for a tubing park operator.” DiNola Report, 3/15/17, at 40 (emphasis added). DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

In another portion of the report, however, DiNola discusses a standard of care set forth in National Ski Areas Association’s “Tubing and Operations Resource Guide.”5 That “standard of care,” however, addresses the length of a tubing run-out, not a standard of care for the use of mats as deceleration devices. Thus, this portion of the expert report does not sufficiently articulate the applicable standard of care or conduct to support Appellants’ theory of this case.

The second expert report, written by Gordon Moskowitz, [*12]  Ph.D., a mechanical and biomechanical engineering expert, does not set forth any standards of care for tubing operators. Thus, this report is not relevant to the determination of whether Appellees engaged in reckless or grossly negligent conduct in failing to meet a standard of care by using folded rubber mats in the deceleration area.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

Issue 3 – Nanty-Glo Rule

In their third issue, Appellants claim that the trial court erred in concluding, solely based on Appellees’ employees’ testimony, that Appellees were not aware of the risk of harm posed by their use of anti-fatigue mats in the deceleration areas of the tubing run. Appellants’ Brief at 55.

The Nanty-Glo Rule limits the trial [*13]  court’s use of affidavits or depositions to decide motions for summary judgment. The Rule provides that a trial court, when ruling on a motion for summary judgment, may not rely solely upon the moving party’s own testimonial affidavits or depositions, or those of its witnesses, to determine that no genuine issue of material fact exists. Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916, 918 (Pa. Super. 1992) (citation and footnote omitted).

Before applying the Nanty-Glo Rule, however, the trial court must first determine whether the plaintiff has alleged sufficient facts to establish a prima facie case:

Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the fact-finder by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.

DeArmitt v. New York Life Ins. Co., 2013 PA Super 161, 73 A.3d 578, 594-95 (Pa. Super. 2013) (citation omitted and emphasis added).

As discussed above, the trial court properly found as a matter of law that Appellants’ experts had not opined about a relevant standard of care [*14]  and, thus, Appellants could not establish facts sufficient to make out a prima facie case of recklessness or gross negligence. Accordingly, Appellants have not demonstrated the applicability of the Nanty-Glo Rule. This third issue, thus, warrants no relief.

Issue 4 – The Release of Snow Time, Inc.

Lastly, Appellants contend that the trial court erred in dismissing the negligence claim against Snow Time, Inc. because the Release at issue did not specifically name or identify Snow Time, Inc. Appellants’ Brief at 61. We disagree.

The Release at issue states, in pertinent part, that Appellants release from negligence claims Appellee Ski Liberty Operating Corporation and its owners:

In consideration of being allowed to use the tubing area at Liberty, Whitetail or Roundtop, I HEREBY AGREE NOT TO SUE AND TO RELEASE, SKI LIBERTY OPERATING CORP., WHITETAIL MOUNTAIN OPERATING CORP. AND SKI ROUNDTOP OPERATING CORP., AS WELL AS THEIR OWNERS, AGENTS AND EMPLOYEES FROM ANY AND ALL LIABILITY RELATED TO INJURY, PROPERTY LOSS OR OTHERWISE RELATED TO MY USE OF THE TUBING FACILITY, REGARDLESS OF ANY NEGLIGENCE ON THE PART OF THE SAME. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE SAME, FROM ANY CLAIM FOR LIABILITY [*15]  RELATED TO INJURY AS A RESULT OF MY OR MY CHILD’S USE OF THE FACILITIES, REGARDLESS OF ANY NEGLIGENCE, RECKLESSNESS OR IMPROPER CONDUCT.

Release (emphasis added).

It is undisputed that Appellee Snow Time, Inc. owns Appellee Ski Roundtop Operating Corporation. Although the Release does not specifically name Appellee Snow Time, Inc., the Release still covers Appellee Snow Time, Inc. because the Release clearly and unambiguously covers the owner of Ski Roundtop Operating Corporation.

Moreover, Appellants do not otherwise contend that the Release is ambiguous. They raise no claims as to the Release’s general validity, conspicuity, or enforceability. Further, Appellants cite no authority to support their implication that unless the Release specifically names an owner, the term “owner” does not apply to it.

We agree with the trial court that the Release applied to Appellee Snow Time, Inc., as the owner of Ski Roundtop Operating Corporation. Therefore, the Release applied to general negligence claims against Appellee Snow Time, Inc. and Appellants’ claim to the contrary is without merit.

Based on the foregoing, we affirm.

Order affirmed.

Judge Ott joins the memorandum.

Judge Strassburger files a [*16]  dissenting memorandum.

Date: 8/14/18

Dissent by: STRASSBURGER

Dissent

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

In this case, the learned Majority holds that the trial court correctly concluded that Appellants could not establish a claim for recklessness or gross negligence as a matter of law at the summary judgment stage.1 Because I believe a reasonable jury could find that the facts constitute gross negligence and/or recklessness, I respectfully dissent. See Albright v. Abington Mem’l Hosp., 548 Pa. 268, 696 A.2d 1159, 1164 (Pa. 1997) (holding that a court may only take issue of gross negligence away from jury and decide the issue as a matter of law “if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence“).

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final [*17]  run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

Trial Court Order Granting Summary Judgment,2 6/19/2017, at 2-3.

What the trial court refers to as “deceleration mats” are actually rubber anti-fatigue mats commonly used as a walking surface in commercial kitchens. Spahr Deposition, 7/14/2016, at 25; Weeden Deposition, 7/20/2016, at 64-65; Whitcomb Deposition, 9/1/2016, at 95-96. The Resort inherited some of the mats from another resort. Whitcomb Deposition, 9/1/2016, at 96. When the Resort needed additional mats, Matt Weeden, the manager of the tubing park at the Resort, testified that he attempted to match the mats in use and “asked [the Resort’s] food and beverage guy where he got his and basically shopped around and compared the mats and figured out exactly what they were and ordered them.” Weeden Deposition, 7/20/2016, at 65. The mats are [*18]  not specifically designed for snow tubing. Id. Appellees used the mats to assist the snow tube rider to slow down at the bottom of the hill and to minimize collisions between a snow tube and people walking around at the bottom of the hill. Reichert Deposition, 7/13/2016, at 34-35; Whitcomb Deposition, 9/1/2016, at 81, 89.

The vinyl snow tubes used by the Resort have a written warning stating that the product is designed to be used on hills with no obstacles with adequate room to stop. Appellants’ Brief in Opposition to Motion for Summary Judgment, 3/16/2017, at Exhibit E. Appellees never conducted any studies as to the effect of a vinyl tube encountering a rubber mat. Whitcomb Deposition, 9/1/2016, at 96. In 2004, Appellees added elevation to the snow-tubing hill in order to create a more fun experience for their customers. Whitcomb Deposition, 9/1/2016, at 53-54. When they did so, they extended the runout “a little bit,” because making the hill higher resulted in the riders traveling faster down the hill and a farther distance at the bottom. Id. at 54-56.

Two of the safeties3 testified that they are aware that the speed that riders travel depends on various factors, including weather conditions, [*19]  the time of day, and the number of people going down a slope at a time. For example, riders went faster when it was colder. Spahr Deposition, 7/14/2016, at 34; Reichert Deposition, 7/13/2016, at 35-37. Nevertheless, the Resort did not measure speed other than by observation. The safeties and tubing supervisors determined when and how to use the mats depending on their observations of how the lanes were running, the speed riders were moving, and where the tubes were stopping, but there were no formal policies or procedures about when and how to use the mats. Reichert Deposition, 7/13/2016, at 35-38, 45; Whitcomb Deposition, 9/1/2016, at 98. The mats sometimes lay flat; sometimes they were folded. One of the tubing safeties observed that folded mats usually slowed down the rider more than flat mats due to an increase in friction. Reichert Deposition, 7/13/2016, at 36.

Appellants obtained the opinions of two experts. The first, Mark A. Di Nola, is an expert in ski and snow tubing risk management. The second, Gordon Moskowitz, Ph.D., is a an expert in mechanical and biomechanical engineering.

Di Nola opined that Bourgeois was severely injured as a direct result of Appellees’ deliberate actions, [*20]  which include the following:

[1.] [Appellees’] conscious decision to employ an operationally reckless company policy mandating the deployment of deliberately placed folded anti-fatigue rubber mats at the bottom of the tubing hill as deceleration devices with explicit knowledge that the deliberately deployed folded anti-fatigue rubber mats were not designed or tested for use as deceleration devices[.]

[2.] [Appellees’] conscious decision to attempt to transfer the increased risks to their guests rather than make the tubing experience safer for consumers by eliminating the increased risk as they did only after [Bourgeois’s] tragic incident, placing their corporate financial needs over the needs of their guests.

[3.] [Appellees] consciously deployed snow tubes and provided them to their patrons in a manner that directly violated the manufacturer’s warning label by using the tubes on hill with deliberately placed obstacles that were set out in an attempt to offset the fact that the hill did not provide adequate room to stop.

[4.] [Appellees’] conscious decisions described above increased the risk of serious bodily injury to riders over and above those inherent in the activity of snow tubing [*21]  in the Commonwealth of Pennsylvania.

[5.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and constitute an extreme departure from the ordinary standards of conduct for a ski area in the Commonwealth of Pennsylvania.

[6.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and are a proximate cause of [Bourgeois’s] injuries.

Di Nola Report, 3/15/2017, at 41-42.

Moskowitz opined, inter alia, that

***

2. The use of folded anti-fatigue mats as a deceleration device would expose tube riders to the likelihood of their tube encountering a sudden abrupt stop, particularly when the mats were folded with the ‘nubs’ exposed to the surface of the tube.

3. The stopping effect of a tube encountering a folded anti-fatigue mat with nubs exposed should have been readily apparent to [Appellees] well before [Bourgeois’s] accident of February 17, 2013.

4. Tube riders who travelled head [] first (on their stomachs) on ‘fast’ days would be subject to a greater [*22]  risk of suffering injuries similar to those experienced by [] Bourgeois.

***

6. Arranging the mats in a folded position enhances the risk of a sudden tube stop.

7. The variations in weather … would have resulted in [Bourgeois’s] tubing experience being significantly faster at or around 3:00 p.m. when his accident occurred than [on Bourgeois’s previous runs down the hill].

Moskowitz Report, 3/14/2017, at 20. Moskowitz also opined that Appellees

knew or should have known that tubers traveling at a high rate of speed would find their tube brought to an abrupt stop when it encountered a folded mat, with that risk increasing further when the mat was folded with the nubs exposed to the bottom of the tube. Analysis indicates that a tube and rider in the prone position with [Bourgeois’s] physical measurements, facing forward and traveling at approximately 15 mph would enter into a flipping motion upon contact with a folded mat due to the resulting friction and the fold. [B]ased upon the known weather conditions and [Bourgeois’s] weight, his speed at the point of encountering the folded mat was well in excess of this speed.

Id. at 16.

After discovery closed, Appellees moved for summary judgment, arguing, [*23] 
inter alia, that Appellants failed to support claims for reckless conduct, because Appellants used the mats in a matter customary to the industry without incident up until the incident. Appellees’ Motion for Summary Judgment, 2/14/2017, at ¶¶ 28-41; Appellees’ Memorandum of Law in Support of Motion for Summary Judgment, 2/14/2017, at 17-20 (pagination supplied). Appellees later argued that the record also did not support a claim of gross negligence. Appellees’ Reply Brief in Support of Motion for Summary Judgment, 3/31/2017, at 24. Appellees contended that Appellants’ expert, Moskowitz, attributed Bourgeois’s injuries to a “confluence of … interlinked events” and thus, Appellees would have no way of knowing or any reason to have known such events could have arisen to cause harm. Id. Appellants opposed Appellees’ motion for summary judgment by presenting the evidence referenced supra.

As the Majority recounts, the trial court stated the following regarding its determination that Appellants failed to set forth evidence support their claims of gross negligence and recklessness:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the [*24]  mats at the bottom of hills for snow tubers. … The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Bourgeois] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Court Order Granting Summary Judgment, 6/19/17, at 18-19.

The trial court further found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. at 19. See also id. at 22-23 (discussing gross negligence).

Noticeably absent from the trial court’s discussion is any mention of Appellants’ expert reports. “At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party.” Greely v. W. Penn Power Co., 2017 PA Super 33, 156 A.3d 276, 282-84 (Pa. Super. 2017). This includes all expert reports. In fact, this Court has held that when a trial court’s opinion does not reflect consideration of the non-moving party’s expert reports, this is error as it signals [*25]  a failure to consider all evidence of record in a light most favorable to the non-moving party. Id.

The Majority simply ignores the trial court’s failure to consider Appellants’ expert reports and undergoes its own analysis of the reports. It concludes that neither expert set forth a relevant standard of care and thus, the duty that Appellees failed to meet. Majority Memorandum at 8-10. The Majority dismisses the Moskowitz report entirely as irrelevant, and rejects the Di Nola report as conclusory. Id.

However, in my view, both experts satisfactorily assisted Appellants in establishing gross negligence and recklessness. Woven throughout the reports are detailed references to the way that Appellees grossly deviated from the standard of care. One cannot seriously dispute that Appellees owe their patrons, who are riding on a vinyl tube without a steering or stopping mechanism down a steep snow-covered hill on a course that Appellees designed, a duty to ensure that the patrons are able to stop safely without serious injury at the bottom. One hardly needs an expert to establish that placing a stationary object, which is designed for an entirely different use, in the path of a fast-travelling [*26]  snow tube rider in the hopes of slowing down the rider could instead, under certain foreseeable conditions, cause the rider to stop abruptly and eject the rider in a manner resulting in serious injury. This is particularly the case when Appellees have not conducted or reviewed studies to determine the effect of placing the mat in the rider’s path under various conditions. Further, a jury could find that risk of serious injury was substantially increased without a standardized method to measure riders’ specific speeds, assess conditions, or arrange the mats. Moreover, not only were the mats used by Appellees not designed for the purpose for which Appellees used them, they used the snow tubes in a manner that was contradicted expressly by the warning on the label – a label, by the way, which was illegible on Appellant’s tube.

The trial court states “[t]here is no evidence that [Appellants] were made aware of the risks of folding the deceleration mats and no evidence that any other incidents happened on the day Plaintiff suffered his injury[,] which would have put [Appellants] on notice that the mats were a problem. Trial Court Order Granting Summary Judgment, 6/19/2017, at 20 (emphasis [*27]  added). However, Appellants need not prove that Appellees actually were aware of the risks, just that Appellants had reason to know of facts which would lead a reasonable person to realize that the person’s conduct creates an unreasonable risk of physical harm to another and that such risk is substantially greater than that which is necessary to make the person’s conduct negligent. Tayar, 47 A.3d at 1200-01.4

In my view, Appellants have put forth enough evidence at this [*29]  stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

End of Document


Question answered in California, what happens if an injured skier is injured again while be tobogganed down the ski slope?

If you assume the risk of skiing in California, you also assume the risk of being injured being tobogganed down the hill by a ski patroller.

Martine v. Heavenly Valley, 2018 Cal. App. Unpub. LEXIS 6043

State: California, Court of Appeal of California, Third Appellate District

Plaintiff: Teresa Martine

Defendant: Heavenly Valley Limited Partnership

Plaintiff Claims: ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree, A ski patroller operating a sled is a common courier

Defendant Defenses: Assumption of the Risk

Holding: For the defendant

Year: 2018

Summary

This is a first of its kind case that I have found alleging negligence against the ski area for an injury received while being transported down a ski run in a toboggan by a ski patroller.

The case also looked at whether a ski area operating a ski patrol using toboggans was a common carrier, owing “passengers” the highest degree of care.

Neither argument by the plaintiff won because she assumed the risks of skiing and after claiming an injury, the risk of being transported down the mountain by the ski patroller in a toboggan.

Facts

As the plaintiff was waiting for a ski patroller to come assist a friend she was skiing with she felt her knee slip. She then requested a toboggan ride down the mountain from the ski patrol.

While descending the mountain, the patroller claims he was hit by a snowboarder and knocked down causing the toboggan to crash. The plaintiff alleged the ski patroller was skiing too fast and lost control sending the toboggan tumbling down the mountain injuring her.

“Heavenly contends that while [Horn] was skiing down the groomed and limited pitch terrain on Lower Mombo, three snowboarders emerged from the trees, off-piste to his right. [Fn. omitted.] While the snowboarders turned to their right, Heavenly claims the last snowboarder clipped [Horn’s] right ski, causing him to fall. Based upon [Horn’s] view, as the snowboarders turned right, they did so on their toe side edge, which put their backs to him. [Horn] tried to avoid a collision with the last snowboarder, but he was unsuccessful, and when he fell the toboggan rolled over. Heavenly alleges that the rollover caused some of plaintiff’s equipment in the toboggin to hit her head.

“Plaintiff, however, contends there was no contact with any of the snowboarders, who she claims were downhill of [Horn]. Instead, plaintiff argues [Horn] lost control of the sled, and he was going too fast and fell. Plaintiff further asserts that [Horn’s] reports indicate the incident did not involve any collision, and the toboggan tumbled instead of simply rolling over. Plaintiff also contends her initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

The plaintiff filed suit, one year 11 months after her injury, claiming a simple negligence claim. The ski area answered and pled numerous affirmative defenses, including the defense of assumption of the risk.

An affirmative defense is one that must be plead by the defendant, or it is lost. Affirmative defenses are listed by the courts, and their requirements are specific and known so that the parties understand exactly what is meant by the defense.

The ski area eventually filed a motion for summary judgment based on the affirmative defense of assumption of the risk. The trial court agreed and granted the defendants motion. The plaintiff appealed, and this decision is the California Court of Appeals upholding the trial court’s decision.

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

The analysis started with a review of the findings of the trial court.

The trial court found, in part, that Martine voluntarily engaged in the activity of skiing and injured her knee while doing so. The court further found that Martine voluntarily summoned the ski patrol for help and voluntarily accepted the ski patrol’s aid knowing that she and Horn risked interference from, or collisions with, other skiers or snowboarders as they descended the mountain.

The court then looked at how primary of assumption of the risk as defined under California law would apply to this case.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.”

If the injured party voluntarily agrees to participate, in the sport of skiing or in being transported down the mountain by the ski patrol, the plaintiff assumed the risk of her injuries.

You volunteer to ski; you volunteer to get in the toboggan and you volunteer to be skied down the hill by the patroller. You, therefore, cannot sue because of the primary assumption of the risk doctrine. You knowingly assumed the risk leading to your injuries.

The plaintiff argued on appeal that a ski patroller running a toboggan is a common carrier. A common carrier is generally known as a business that transport people for a fee. Trains, subways, and airlines are examples of common carriers. A common carrier owes the highest degree of care to those who the common carrier is transporting.

Specifically, a common carrier must “do all that human care, vigilance, and foresight reasonably can do under the circumstances” to avoid injuring those that it carries.

California defines common carries by statute, Civil Code section 2168, which defines common carrier as “[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages is a common carrier of whatever he thus offers to carry.”

In California and Colorado, a ski area is a common carrier when someone is riding the ski lift. They are transporting people for hire and in the business of doing so to anyone who buys a ticket.

There is a three-part test to determine whether someone transporting someone for hire is a common carrier.

In deciding whether Heavenly is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services.

The court did not have to determine if Heavenly was a common carrier because the plaintiff put forth no facts, no evidence that the ski area and a ski patroller with a toboggan were a common carrier. With no evidence, the plaintiff cannot make an argument supporting her claims, and the court could not make a ruling.

The court, however, still overruled the argument stating:

Further, descent from a mountain via rescue sled operated by ski patrol is distinguishable from the ski lifts discussed in Squaw Valley because unlike the lifts that indiscriminately “carry skiers at a fixed rate from the bottom to the top” of the mountain, rescue patrollers, at a patroller’s discretionary election, transport injured skiers without any apparent compensation to the bottom of the mountain.

The California Appellate Court upheld the dismissal of the plaintiff’s complaint.

So Now What?

You always have the option, unless you are unconscious, to refuse the toboggan ride down the mountain and get down on your own. In this case, it almost sounds like the plaintiff still could have skied down but did not.

It does not matter though because once you assume the risk of skiing you assume all the risks associated with the activity, including the risks of additional injury while being rescued.

What do you think? Leave a comment.

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Martine v. Heavenly Valley, 2018 Cal. App. Unpub. LEXIS 6043

Martine v. Heavenly Valley

Court of Appeal of California, Third Appellate District

September 4, 2018, Opinion Filed

C076998

2018 Cal. App. Unpub. LEXIS 6043 *

TERESA MARTINE, Plaintiff and Appellant, v. HEAVENLY VALLEY LIMITED PARTNERSHIP, Defendant and Respondent.

Opinion

 [*1]  Plaintiff Teresa Martine (Martine) hurt her knee while skiing at Heavenly Valley Ski Resort and was being helped down the mountain by a ski patrolman when the rescue sled in which she was riding went out of control and hit a tree. Martine sued resort owner Heavenly Valley Limited Partnership (Heavenly) for negligence and for damages arising from her injuries.

Heavenly moved for summary judgment arguing that there was no evidence that its employee, a ski patrolman named Gustav Horn (Horn) had been negligent in taking Martine down the mountain thus causing the sled to hit the tree and that, in any event, Martine‘s action is barred by the doctrine of primary assumption of risk.

The trial court granted Heavenly’s motion and entered judgment accordingly. Martine appeals.

As we understand her arguments on appeal, Martine asserts: (1) there is evidence on the motion to support Martine‘s claim that the ski patroller Horn was negligent; (2) her action is not barred by the doctrine of primary assumption of risk; (3) the trial court erred in not allowing her to amend her complaint to allege negligence and damages arising from a second injury she incurred the same day while being taken off the [*2]  mountain; and (4) the trial court erred in not granting her motion for a new trial.

We affirm the judgment.

The Proceedings

On March 2, 2011, Martine filed a Judicial Council of California form complaint alleging general negligence against Heavenly for injuries she suffered on March 23, 2009. Specifically, Martine alleged: “Heavenly is liable for the negligent transportation of an injured party. Ms. Martine injured her knee while skiing and called for ski patrol to transport her to the bottom of the mountain. She was loaded into a sled by ski patrol, who may have loaded her improperly. During her transport to the bottom of the mountain, ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree. As a result of the accident, Ms. Martine suffered injuries to her head and leg.”

Heavenly answered the complaint, asserting various affirmative defenses, including that Martine had assumed the risk for all injuries sustained and that her injuries “resulted from inherent risks of the activity in which [Martine] engaged and as to which [Heavenly] owed no duty.”

On November 21, 2012, Heavenly brought its motion for summary judgment (Motion) [*3]  arguing alternatively that Martine‘s complaint (1) was barred by the doctrine of primary assumption of risk, or (2) there was no evidence that Heavenly breached a duty of care and/or caused Martine‘s injuries.


Martine opposed the Motion, arguing: (1) the doctrine of primary assumption of risk “does not apply to the transportation of injured skiers by the ski resort’s ski patroller” and (2) the doctrine of primary assumption of risk “does not apply to the transportation of injured skiers by the ski resort’s ski patroller engaged in a common carrier activity charged with the duty of utmost care.” As to her common carrier contention, Martine also argued that the doctrine of res ipsa loquitur applied, which would show negligence on the part of Heavenly’s employee.

The trial court granted the motion for summary judgment and entered judgment for Heavenly ruling that Martine‘s action was barred by the doctrine of primary assumption of risk and that Heavenly was not acting in the capacity of a common carrier at the time of the accident.

Martine thereafter moved for a new trial arguing, in part, that there was newly discovered evidence. The trial court denied the motion.

The Facts

In its order [*4]  granting summary judgment, the trial court set forth the following disputed and undisputed facts relevant to the motion. Neither party has challenged the trial court’s statement of facts and, having reviewed the record on our own, we will adopt it as the statement of facts relevant to the motion for summary judgment.

“On March 23, 2009, plaintiff was skiing down Powder Bowl at Heavenly Mountain Resort. While skiing with friends, one of plaintiff’s companions came out of her skis, and plaintiff called for the assistance of ski patrol. Plaintiff claims that while standing on the hill her kneecap ‘moved out and back in.’

“Volunteer ski patroller Gustav ‘Gus’ Horn was dispatched to the scene of plaintiff’ s call for assistance. [Horn had] been a ski patroller, both paid and as a volunteer, for the [prior] twenty-eight years. He [had] been at Heavenly for ten years, and he [had] patrolled there over 100 days. [Horn was] a certified professional ski patroller and examiner in first aid, toboggan handling, and skiing, and [was] recertified every two years. [Horn was] trained in all aspects of patrolling, including patient care, toboggan transport, and first aid, and [was] tested on these skills [*5]  each year by Heavenly. He receive[d] annual and ongoing on-hill training in all aspects of ski patrol including, but not limited to, toboggan training, toboggan training on steep slopes, first aid, and other areas.

“When [Horn] arrived at the scene, he conducted an assessment of plaintiff’s reported injuries and called for a toboggan to be transported to him. When the toboggan arrived, [Horn] unpacked it and stabilized it. He applied a quick splint to plaintiff’s left leg in accordance with his training and knowledge, [which included] immobilizing the area above and below the injury site, plaintiff’s knee. [Horn] had plaintiff lay down in the toboggan inside a blanket roll. After plaintiff was in the toboggan, [Horn] placed a plastic cover or tarp over her, he placed her equipment on her non-injury side (her right side), and strapped her in using the straps provided on the toboggan.

“Heavenly contends that while [Horn] was skiing down the groomed and limited pitch terrain on Lower Mombo, three snowboarders emerged from the trees, off-piste to his right. [Fn. omitted.] While the snowboarders turned to their right, Heavenly claims the last snowboarder clipped [Horn’s] right ski, causing [*6]  him to fall. Based upon [Horn’s] view, as the snowboarders turned right, they did so on their toe side edge, which put their backs to him. [Horn] tried to avoid a collision with the last snowboarder, but he was unsuccessful, and when he fell the toboggan rolled over. Heavenly alleges that the rollover caused some of plaintiff’s equipment in the toboggin to hit her head.

“Plaintiff, however, contends there was no contact with any of the snowboarders, who she claims were downhill of [Horn]. Instead, plaintiff argues [Horn] lost control of the sled, and he was going too fast and fell. Plaintiff further asserts that [Horn’s] reports indicate the incident did not involve any collision, and the toboggan tumbled instead of simply rolling over. Plaintiff also contends her initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

Heavenly asserts “[t]he rollover caused some of [Martine‘s] equipment in the toboggan to hit her head” while Martine contends her “initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

Discussion

I

Scope of Review

As the California Supreme Court explained in Aguilar v. Atlantic Ridgefield Co. (2001) 25 Cal.4th 826 (Aguilar), “Under summary judgment law, [*7]  any party to an action, whether plaintiff or defendant, ‘may move’ the court ‘for summary judgment’ in his favor on a cause of action (i.e., claim) or defense (Code Civ. Proc., § 437c, subd. (a)) . . . . The court must ‘grant[]’ the ‘motion’ ‘if all the papers submitted show’ that ‘there is no triable issue as to any material fact’ (id., § 437c, subd. (c))–that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations]–and that the ‘moving party is entitled to a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd. (c)). The moving party must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Id., § 437c, subd. (b).) Likewise, any adverse party may oppose the motion, and, ‘where appropriate,’ must present evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Ibid.) An adverse party who chooses to oppose the motion must be allowed a reasonable opportunity to do so. (Id., § 437c, subd. (h).)” (Aguilar, at p. 843.)

“In ruling on the motion, the court must ‘consider all of the evidence’ [*8]  and ‘all’ of the ‘inferences’ reasonably drawn therefrom (id., § 437c, subd. (c)), and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar, 25 Cal.4th at p. 843.) “[I]f the court concludes that the plaintiff’s evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendant[‘s] motion.” (Aguilar, 25 Cal.4th at p. 856.)

” ‘The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’ (Andalon v. Superior Court, [(1984) 162 Cal.App.3d 600, 604-605].) ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.’ [Citations.] The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action. [Citation.]” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)

“A defendant . . . has met his . . . burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, [*9]  or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).)

We review the record and the determination of the trial court de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; see also, Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

A motion for a new trial may be sought following an order on summary judgment, and the decision thereon is generally reviewed for an abuse of discretion. (Aguilar, 25 Cal.4th at pp. 858-859.)

II

The Pleadings

Given the law set forth above and to give structure to our opinion, we should first turn to the pleadings in this matter.

As we related earlier, Martine brought a complaint alleging against Heavenly a single cause of action for negligence in that she “injured her knee while skiing and called for ski patrol to transport her to the bottom of the mountain. She was loaded into a sled [*10]  by ski patrol, who may have loaded her improperly. During her transport to the bottom of the mountain, ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree.”

As is apparent, Martine‘s sole cause of action sounds in negligence relying essentially on an allegation that Horn negligently failed to maintain control of the emergency sled in which she was riding, leading to her injuries. At its essence, Heavenly challenges the allegation of negligence arguing that there is no evidence of negligence on Horn’s part and, even if he was simply negligent, that negligence is legally offset by the doctrine of primary assumption of risk. Martine‘s single pleading “delimits” the issues on the motion for summary judgment.

We recognize that Martine also contends that her pleading should be read broadly enough to encompass a claimed injury arising from being dropped when later being loaded on the ski tram. We reject that contention, post, as did the trial court.

Finally, we find that we need not address Martine‘s claim that she presented sufficient evidence on the motion to require a trial as to Heavenly’s negligence in causing her injuries [*11]  (or that Heavenly did not present enough evidence to find there was no triable issue of material fact on the question of negligence) because in this matter we find a defense based on the doctrine of the primary assumption of the risk dispositive.

III

Primary Assumption of the Risk

The trial court found, in part, that Martine voluntarily engaged in the activity of skiing and injured her knee while doing so. The court further found that Martine voluntarily summoned the ski patrol for help and voluntarily accepted the ski patrol’s aid knowing that she and Horn risked interference from, or collisions with, other skiers or snowboarders as they descended the mountain.

As explained in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight):

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, § 1714.) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citations.] In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of [*12]  harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. (See generally Annot. (1987) 55 A.L.R.4th 632.) In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Knight, supra, 3 Cal.4th at p. 315.)

Determining “the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” (Knight, supra, 3 Cal.4th at p. 313.)

A.
Martine‘s Injury was Due to a Risk Inherent in the Sport of Skiing

“The risks inherent in snow skiing have been well catalogued and recognized by the courts” including “injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris” and “collisions with other skiers, ski lift towers, and other properly marked or plainly visible objects and equipment.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, italics added.)


Martine argues that she and Horn were not participating in the active sport [*13]  of skiing at the time of the accident. This argument is unpersuasive.

Martine was skiing on a ski run when she apparently hurt her knee and sought and secured assistance from the ski patrol. The possibility that Martine might injure herself while skiing and need assistance descending the mountain is one of the foreseeable risks of the sport of skiing. That one might be injured during that descent on a rescue toboggan are risks inherent in the sport of skiing.

Putting aside Martine‘s unsupported speculation as to the cause of the accident, the facts adequately supported by the evidence on the motion are that the person assisting Martine down the mountain fell after an encounter with snowboarders who emerged from the woods. Falling during skiing is a risk inherent to the sport. (Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 214 [“Falling and thereby being injured or even killed are inherent dangers of skiing”].) And as noted earlier, collisions or near-collisions with other skiers or snowboarders on the mountain are also inherent in the sport of skiing whether one is skiing or being taken off the mountain after being injured while skiing.

We conclude the trial court properly determined that Martine‘s claim for negligence is barred by [*14]  the doctrine of primary assumption of risk.

B. The Common Carrier Issue


Martine also argues primary assumption of the risk does not apply because, in carrying out her rescue from the mountain, the ski patrol was acting as a common carrier.

Whether the ski patroller rescuing Martine is a common carrier within the meaning of Civil Code section 2168 is a matter of law where the facts are undisputed. (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1506 (Squaw Valley) [ski resort operating chairlift is common carrier].) The common carrier determination is significant because if it applies, it would impose a duty of the utmost standard of care. (See Squaw Valley, at pp. 1506-1507.) Specifically, a common carrier must “do all that human care, vigilance, and foresight reasonably can do under the circumstances” (id. at p. 1507) to avoid injuring those that it carries.

Initially, we note that Martine‘s complaint is devoid of any allegations that Heavenly’s ski patroller was acting as a common carrier at the time of her injury, nor does Martine‘s complaint contain facts sufficient to establish the applicability of the common carrier doctrine. Thus, it is unclear whether Martine may use the doctrine’s application to avoid summary judgment on her general negligence claim because Heavenly [*15]  was not required to refute liability on theoretical issues not raised in the complaint. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 793 [“the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint“], italics in original; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [a party seeking to expand issues presented by the complaint must do so by amending the complaint, not by way of opposition papers alone].)

In any event, as recognized in Squaw Valley, Civil Code section 2168 provides the definition of common carrier applicable to tort actions and states “[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages is a common carrier of whatever he thus offers to carry.” (Squaw Valley, supra, 2 Cal.App.4th at p. 1507.)

In deciding whether Heavenly is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services. (Judicial Council of California Civil Jury Instruction 901; Gradus v. Hanson Aviation (1984) 158 Cal.App.3d 1038, 1048 [applying these factors].)

Here, Martine put forth no facts that Heavenly (1) maintained a business for transporting injured patrons to the bottom of the mountain, [*16]  (2) advertised such service, or (3) charged for that service. Nor did Martine state separate facts alleging that Heavenly offered descent from the mountain to the public generally. Accordingly, Martine‘s common carrier argument necessarily fails. (See Blackman v. Burrows (1987) 193 Cal.App.3d 889, 894-895 [refusing to consider factual contentions contained within the memorandum in opposition, but not set forth in a separate statement of facts].) Further, descent from a mountain via rescue sled operated by ski patrol is distinguishable from the ski lifts discussed in Squaw Valley because unlike the lifts that indiscriminately “carry skiers at a fixed rate from the bottom to the top” of the mountain, rescue patrollers, at a patroller’s discretionary election, transport injured skiers without any apparent compensation to the bottom of the mountain. (Compare Squaw Valley, supra, 2 Cal.App.4th at p. 1508.)

At oral argument, Martine relied upon Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607 (Regents) to argue Heavenly was liable because either it acted as a common carrier by providing the ski patrol service or it had a special relationship with Martine like a common carrier has with its passengers. Regents does not support either argument. First, the case does not concern a common carrier’s duty; rather, it decided [*17]  whether a university has a special relationship with its students requiring it to protect them from foreseeable violence. (Id. at p. 620.) Nothing in the case suggests a ski resort becomes a common carrier by providing ski patrol to remove injured skiers from the mountain.

Second, Regents cannot be read to create a special relationship imposing an affirmative duty to warn and protect others of inherent dangers where the plaintiff assumes a risk of injury by intentionally engaging in dangerous activity. By assuming the risk, the plaintiff negates the defendant’s duty of care as well as any affirmative duty to protect. “By an express assumption of risk, the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant’s duty of care, and acknowledging the possibility of negligent wrongdoing.” (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7.) It is no surprise that Regents did not discuss assumption of the risk, as attending a university, unlike skiing, is not an inherently dangerous activity. Regents is irrelevant to this case.


Martine relied on another case at oral argument, Hass v. RhodyCo Productions (Aug. 13, 2018, A142418) __ Cal.App.5th __ [2018 WL 3830002], that also does not aid her. There, [*18]  the court of appeal ruled the primary assumption of the risk doctrine did not bar the plaintiffs’ claim for gross negligence arising from a foot race operator’s alleged breach of its duty to minimize the race’s extrinsic risks without altering the race’s nature. (Id. at p. 14.) The case does not apply here, as Martine did not contend in opposing the summary judgment motion that Heavenly was grossly negligent.

Because we have found the trial court properly granted summary judgment of Martine‘s claims through application of the doctrine of assumption of risk, we need not address Martine‘s argument that the trial court erred in excluding evidence intended to show that Martine‘s rescuer’s conduct was merely negligent under either principles of ordinary negligence or application of the law of common carriers.

IV

The Scope and Amendment of Martine‘s Complaint

Martine argues the trial court erred in not allowing her to amend her complaint to allege negligence and damages arising from a second injury she incurred the same day while being taken off the mountain. Again, we are unpersuaded.

In an attempt to circumvent the application of the doctrine of primary assumption of risk, Martine argues that her complaint [*19]  should have been liberally construed to include a second injury occurring while waiting for the tram, offering as a rationale for that argument that her complaint invoked “all head trauma damages” sustained on the day of the accident.

We note first that Martine never filed a motion to amend her complaint nor did she offer a proposed amended pleading.

The allegations of the complaint as set forth, supra, clearly concern only the accident on the ski run wherein it is alleged that her rescuer negligently lost control of the rescue sled thus injuring Martine when she hit a tree. There is no allegation that she sustained additional injuries when she was later dropped when being loaded on the tram. We reject, as did the trial court, her late-to-dinner effort to significantly expand her factual allegations beyond the complaint she filed, which expansion necessarily would import new legal theories and new defenses into the lawsuit she chose to file.

V

The New Trial Motion

Martine argues the trial court erred in denying her new trial motion. Because the decision of the trial court is presumptively correct, Martine has the burden of overcoming that presumption by affirmatively demonstrating trial court [*20]  error. (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 683 [ruling on new trial motion is presumptively correct unless error established gives rise to a presumption of prejudice].)

This includes the duty to separately identify under appropriate headings each assertion of trial court error. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Contrary to this duty, Martine placed argument concerning her motion for a new trial under the heading “Heavenly Has the Substantive Burden on Appeal to Establish that it is Entitled to Summary Judgment.”

Whether the trial court erred in granting the motion for summary judgment is a separate question from whether it also erred in denying the new trial motion. (Code of Civ. Proc., §§ 437c, 657.) Thus, Martine‘s headings and poor organization undermine this court’s review and cause us to question whether Martine is entitled to review of these assertions at all. (See Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1077 [challenge to authenticity not subsumed in heading concerning relevancy and prejudice].)

Putting this issue aside, Martine‘s arguments for a new trial may be divided into two categories: (1) those waived because they were not raised in the trial court and (2) those forfeited because Martine has failed to provide cogent facts and legal analysis demonstrating trial court error.

” ‘Appellate courts are loath to reverse [*21]  a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. . . .’ [Citations.]” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [appellant’s failure to raise specific challenges in trial court resulted in their forfeiture on appeal].) Therefore, we will not consider Martine‘s claims concerning irregularities in the proceedings and/or surprise which ordinary prudence would not guard against because Martine‘s motion in the trial court did not argue these issues.

Further, “[i]t is the responsibility of the appellant, here [Martine], to support claims of error with meaningful argument and citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) In addition, citing cases without any discussion of their application to the present case results in forfeiture. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482-483.) We are not required to examine undeveloped claims or to supply arguments for the litigants. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546 [it is not [*22]  the court’s function to serve as the appellant’s backup counsel].)” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)

Martine‘s remaining new trial arguments concerning the discovery of new evidence, the sufficiency of the evidence, the trial court’s decision being against the law, and that there was an error in law are forfeited for failure to supply cogent and supported argument with citations to the record affirmatively demonstrating error.

Disposition

The judgment is affirmed. Heavenly is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)


HULL , J.

We concur:

BLEASE , Acting P. J.

ROBIE , J.

 


A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

The defendant one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also, laid out the risks of skiing quite broadly in its information to the plaintiff.

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania

Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill

Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.

Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area

Defendant Defenses: Assumption of the Risk and Release

Holding:

Year: 2006

Summary

Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.

Facts

The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)

While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.

The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.

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

The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”

Under Pennsylvania law, a release to be valid must:

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

The court then went through the facts in this case to see if the requirements under the law were met.

The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”

The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”

The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.

The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.

The court found that icy conditions were an inherent risk of skiing in Pennsylvania.

Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.

So Now What?

It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.

Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.

In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.

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

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

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

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

Plaintiff: Quan Vu and May Siew

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

Plaintiff Claims: Negligence and Loss of Consortium

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

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

Facts

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

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

He sued the defendant ski area because it was:

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

The court granted the defendants motion for summary judgment.

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

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

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

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

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

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

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

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

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

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

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

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

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

The first is an inherent risk of skiing in Pennsylvania.

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

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

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

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

So Now What?

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

What do you think? Leave a comment.

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

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

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

1:16-cv-2170

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2018 U.S. Dist. LEXIS 49013

March 26, 2018, Decided

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

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

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

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

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

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

OPINION BY: John E. Jones III

OPINION

MEMORANDUM

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

I. BACKGROUND

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

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

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

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

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

PLEASE READ

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

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

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

I II. LEGAL STANDARD

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

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

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

III. DISCUSSION

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

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

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

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

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

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

2 Id.

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

4 Cole, 2017 WL 4621786, at *5.

5 Hughes, 762 A.2d 339.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. CONCLUSION

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

ORDER

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

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

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

/s/ John E. Jones III

John E. Jones III

United States District Judge


Under California law, you assume the risk of getting hit by a toboggan being towed by a snowmobile while snowboarding.

Both sides of this case created problems for themselves, and both sides stretched their credibility. In the end, it was easy for the plaintiff to lose because of that credibility gap created by the facts and when those facts were reported.

Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204

State: California

Plaintiff: Dominique Forrester

Defendant: Sierra at Tahoe

Plaintiff Claims: General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2017

Summary

Snowboarder loses suit claiming a toboggan being towed by a snowmobile hit him on a beginner slope. By reporting the incident after he left the resort, he created a credibility issue.

In the end, getting hit by a toboggan being towed by a snowmobile is a risk you assume when skiing in California.

Facts

The facts in a case like this are always screwy to begin with and in my opinion, screwy from both sides of the litigation. The plaintiff and a friend were snowboarding. The plaintiff was filming his friend doing jumps. After the last jump, the plaintiff snowboarded toward the bottom which was on a beginner run waiting for his friend. While waiting, he heard someone yell, and he was hit by a toboggan. He hit his head suffering injuries. The plaintiff thought he saw a ski patroller driving away with the toboggan attached to the snowmobile. The fall broke some of his equipment also.

His friend saw the incident and stated that the driver was wearing a different uniform from what the plaintiff reported. Neither of them saw lights nor a flag on the snowmobile.

The plaintiff and his friend did not report the injury but drove home. On the way home they decided the plaintiff should call Sierra. He did and got a recording machine. He then started vomiting.

The next day the plaintiff hurt all over. Eventually, he was diagnosed with a concussion, a whiplash and disc degeneration.

The plaintiff called the ski area the next day and was told there was no one for him to talk to. He was to call back Wednesday. Wednesday, he called back and filed a report.

Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile” (patroller), got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.

The same day the plaintiff contacted an attorney.

The ski area investigated the claim. No ski patrollers or terrain park employees knew of any collision with a toboggan and a snowboarder.

MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they spoke recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.

Obviously, the ski area felt that no collision or accident had occurred. The case went to trial, and the plaintiff lost because the jury found he had assumed the risk of injuries.

Normally, juries like judges are asked to assemble, to a limited extent, the facts upon which they base their decision. In this case that was not done.

As we noted earlier, this case is unusual among liability cases in general because the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be.

The plaintiff appealed the decision.

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

The court first looked into the issues surrounding the snowmobile. The defendant kept a checklist that was to be completed each day before the snowmobile was ridden. The checklist was not kept after it was completed.

Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded daily unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found.

The day in question was one of the busiest of the year. The ski area employees testified that it was so buy, it would have been impossible to drive a snowmobile through the crowd on the slope in question.

The court then reviewed the evidence of the competing expert witnesses, both of whom offered testimony that at best seems stretched and will be ignored here and was ignored a lot by the court.

The court then reviewed the defenses offered by the ski area, starting with Primary Assumption of the Risk.

“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.”

Ski areas and other operators, sponsors and instructors of recreational activities have no duty to eliminate the risk. They do have a duty not to increase the risk beyond those inherent in the sport. The court based on this analysis looked at whether a toboggan is an inherent risk of skiing and boarding and found it was.

We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.

On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.

In both examples, the court compared the collisions to collisions with stationary objects, a lift tower and a tree.

The court looked at the facts in this case and concluded the incident was a collision with a toboggan, rather than a toboggan hitting a snowboarder. I suspect the facts in the two cases the court reviewed would have different conclusions if the lift tower or the tree had hit the skiers?

To reach this conclusion, the court went back to the statements of the experts of both the plaintiff and the defendant who testified that snowmobiles were a standard practice in the sport of skiing.

There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd.

The court then also looked at Secondary Assumption of Risk.

The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). In the latter class of cases, we concluded; the issue could be resolved by applying the doctrine of comparative fault, and the plain-tiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiffs knowing and voluntary acceptance of the risk functions as a form of contributory negligence.

The court held that discussing secondary assumption of risk was not necessary in this case because the jury found the defendant was not liable because of primary assumption of the risk.

The plaintiff also argued that an evidentiary ruling should have been made in the plaintiff’s favor because the defendant failed to keep the snowmobile checklist. The rules and laws of what evidence should be kept or can be destroyed to have changed dramatically in the past twenty years, and this area of law is a hot bed of litigation and arguments.

However, the court moved around this issue because the checklist was destroyed every day. The defendant gave the plaintiff a list of the possible drivers of snowmobiles at the resort. Because the checklist was only used by the first driver, and the snowmobile could have been ridden by someone other than the driver who completed the checklist, the court found it was not critical to the case. The plaintiff request of the information had occurred after the checklist had been destroyed as was the habit for the defendant.

So Now What?

First being hit by an object being towed by a snowmobile inbounds in California is an assumed risk. This is the first case f this type I have found. Every other case where the defendant has been held not liable because of assumption of the risk at a ski area was based on the skier or boarder hitting a fixed object.

Second, credibility maybe all you have in some cases. Consequently, you never want to stretch or destroy your credibility, and you do not want your experts to do the same.

Last, if you are hurt at a resort, get help at the resort. Some of the plaintiff’s injuries might have been mitigated if treated immediately.

However, all the above issues could be crap, if the jury ruled not because they believed the plaintiff assumed the risk, but because they did not believe the plaintiff at all.

What do you think? Leave a comment.

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Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204

Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204

Dominique Forrester, Plaintiff and Appellant, v. Sierra at Tahoe, Defendant and Respondent.

C079107

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

2017 Cal. App. Unpub. LEXIS 5204

July 27, 2017, Opinion Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

SUBSEQUENT HISTORY: Review denied by Forrester v. Sierra at Tahoe, 2017 Cal. LEXIS 7927 (Cal., Oct. 11, 2017)

PRIOR HISTORY: [*1] Superior Court of El Dorado County, No. PC20120138.

CORE TERMS: snowmobile, collision, ski, inherent risk, snowboarding, sport, checklist, toboggan, driver, ski resort, skiing, unreasonably, assumption of risk, slope, secondary, emergency, resort, ski area, skier, hit, snowboarder, patroller, patrol, risks inherent, instructional error, lift, discarded, siren, suppression, tower

JUDGES: Duarte, J.; Butz, Acting P. J., Mauro, J. concurred.

OPINION BY: Duarte, J.

OPINION

Plaintiff Dominique Forrester was injured while snowboarding at defendant ski resort Sierra-at-Tahoe (Sierra) on March 7, 2010. He claimed he was hit by a toboggan, that in turn was being towed by a snowmobile, while on a beginner slope. The trial court found assumption of the risk applied to the claim, and the case went to the jury to answer the question of whether Sierra unreasonably increased the risk to Forrester above that already inherent in the sport of snowboarding. By a vote of 10 to 2, the jury answered “no.”

On appeal, plaintiff contends the trial court erred in ruling that primary assumption of the risk applied to this case, and instructing the jury accordingly. Plaintiff argues a collision with a snowmobile is not an inherent risk of snowboarding. He further contends the court incorrectly instructed the jury on secondary assumption of the risk, and erred in refusing to instruct on the willful suppression of evidence.

As we will explain, this case is unusual among liability cases in general because the very existence of the alleged accident–the collision itself–was [*2] and remains in dispute. We first conclude that unwanted contact with a snowmobile (here encompassing a towed toboggan), on a ski slope at a ski resort, is indeed an inherent risk of snowboarding. Although Forrester argues the particular alleged circumstances of the operation of the snowmobile on the day of the incident took the collision outside the boundaries of inherent risk, that issue was tendered to the jury and the jury found Sierra did not unreasonably increase the risks already inherent in snowboarding

We assume instructional error on secondary assumption of the risk but find no prejudice, and conclude that the evidence did not support an instruction on willful suppression of the evidence.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Alleged Accident

On Sunday, March 7, 2010, Forrester met his high school friend, Franklin Medina, for a day of snowboarding at Sierra. That day was the busiest of the year, with about 6,370 people at the resort. Forrester described himself as an intermediate snowboarder who does not perform jumps. He did not wear ear buds or ear phones while snowboarding and did not recall ever seeing a snowmobile in a ski area before that [*3] day.

At about 3:30 or 4:00 p.m., Forrester was filming Medina doing jumps. After the last jump, Medina snowboarded down the run to wait for Forrester. The bottom area of the ski run is known as Broadway; it is a beginner run near the teaching area and close to the lodge.

According to Forrester, as he began to snowboard down Broadway, he heard someone yell “hey.” He tried to turn around and was hit in the back of the legs. He went airborne and landed on his bottom and then hit his head. His goggles cut his face. He was hurt and dizzy. The snowmobile was 30 yards away when Forrester first saw it, and the driver “took off.” Forrester thought the driver’s jacket was orange or red, but he was not sure. He assumed only ski patrollers, who wear orange-red jackets, operated snowmobiles. He thought the snowmobile driver was wearing a beanie. Forrester did not hear the snowmobile. After the collision, Forrester slid down the mountain, and some other snowboarders asked if he was okay. He did not realize his equipment was broken until he later responded to special interrogatories.

Medina claimed he saw the incident, and that the snowmobile was in front of Forrester’s path and pulling a toboggan. [*4] He saw the toboggan clip Forrester’s feet and “take him out.” The snowmobile was going two or three times faster than Forrester. Forrester took his equipment off and walked down the mountain. Medina claimed the driver of the snowmobile was wearing a black and purple vest like the ones worn by terrain park employees (rather than the orange and red jacket described by Forrester). Medina did not see any lights on the snowmobile and did not notice a flag, nor did he hear a siren.

Forrester did not report the accident, but tried to “walk off” the injury. On the way home Forrester and Medina discussed that Forrester had been hit and decided they should call Sierra. Forrester called just after 5:00 p.m. and got an answering machine. Forrester began vomiting and they stopped in Placerville where Medina took pictures of his face. Medina drove Forrester home.

The next day, Monday, Forrester hurt all over his body, including a bad headache. He went to his doctor who ordered a CT scan, the results of which were normal. Over the next few days, Forrester’s back began to hurt. He was diagnosed with a concussion and a whiplash back injury. Forrester was later diagnosed with disc degeneration with a [*5] prognosis of ongoing pain.

Reporting the Accident

Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile (patroller),” got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.

Forrester contacted an attorney the same day he spoke with MacClellan. Forrester sent MacClellan a written report, in which he stated he “was involved in a collision with a Sierra Ski Patrol Officer (Ski Patroller) whom [sic] was driving a snow mobile, towing a stretcher. . . . The Ski Patroller was apparently attempting to cross from my left, which was behind me (I have a ‘regular’ board stance), across my face, to the right of me when he collided into me from my blind side. As a result I flew over [*6] him and crashed very hard into the mountain. I suffered a head injury, as well as whiplash, and subsequently blacked out for a short period of time.” The statement continued that Forrester did not see the “patroller” and heard no sirens; he heard only a brief “hey” right before the impact. His friend Medina had witnessed the collision and could not believe it; other snowboarders asked if Forrester was okay, but the ski patrol did not.

MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they had spoken recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.

The Lawsuit and Trial

Forrester brought suit against Sierra for general negligence and [*7] premises liability. The complaint stated: “Included in the Cause of Action for General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability.” Forrester took some theories of liability “off the table” and the trial court granted defendant’s motion for nonsuit as to others. As we explain in more detail, post, the matter was submitted to the jury as an assumption of the risk case, with the jury asked to determine whether Sierra unreasonably increased the inherent risks of snowboarding

Snowmobile Evidence

Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded on a daily basis unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found. At trial, Sierra stipulated that anyone [*8] driving a snowmobile at the resort that day would have been employed by Sierra. The checklist would not necessarily reveal the identity of the driver of the snowmobile in any event, because once the snowmobile is checked out others may use it without completing a new checklist. Sierra maintains no record showing who is using a snowmobile at a particular time on a specific date.

A snowmobile is a loud machine; its sound is comparable to a motorcycle or lawnmower. The flashing lights are always on if the snowmobile is running, but the siren can be turned on and off. It is against Sierra’s policy to operate a snowmobile without a siren when guests are present. The snowmobile has an attached fiberglass pole with a flag atop, to aid in visibility. March 7, 2010, was a peak day and there was a blackout on the use of snowmobiles in the ski areas except for emergencies. Rice defined emergencies as ski patrol rescue, lift evacuation, a fire or gas leak on the hill, and to carry law enforcement to an altercation. There were no documented emergencies the day of the incident. MacClellan testified that with 6,000 people on the ski slopes, it would be “virtually impossible” to drive a snowmobile [*9] through the Broadway area.

The ski patrol uses orange toboggans for rescue, which are stored in different locations on the mountain and used to transport injured guests. Patrollers take them uphill by chair lift or by snowmobile. Snowmobiles are rarely used to take a toboggan down the mountain; usually a patroller skis them down. Snowmobiles do not tow injured guests in a toboggan.

Plaintiff’s Experts

In addition to medical experts, plaintiff called a ski safety consultant and an accident reconstructionist. Richard Penniman testified as an expert on ski area mountain operations. He testified it was below industry standard to have a snowmobile on the ski slopes when a large number of people are present. On a run like Broadway that is designed for beginners, it was very dangerous to have anything present other than skiers and snowboarders. It was below the industry standard to use the Broadway area as a snowmobile route. Penniman added snowmobiles are only a convenience and a ski resort can operate without them. He conceded, however, that it was standard practice for ski areas to use snowmobiles and agreed they were extremely useful in an emergency where the risk they create might be worth [*10] it. He agreed with the policy of Sierra-at-Tahoe not to use snowmobiles on busy days except in the case of an emergency. In Penniman’s opinion, Sierra’s conduct in operating a snowmobile the day of the incident increased the risk of injury to skiers and snowboarders.

Jesse Wobrock, an accident reconstructionist and bioengineer, prepared an animation of the accident. He testified the accident had “an injury mechanism for both the lumbar spine and the traumatic brain injury.” The damage to Forrester’s left binding was consistent with the height of the toboggan, as was the orange color transfer on the binding. Wobrock testified the physical evidence corroborated the eyewitness testimony. In his opinion, the snowboard went between the tread of the snowmobile and the toboggan; the toboggan ran over the snowboard.

Defense Case

John Gardiner, a forensic engineer and biomechanic, testified for the defense. He opined there was neither consistent testimony nor sufficient physical evidence to conclude what occurred that day. Gardiner testified that if Forrester’s left binding made contact with a toboggan, the contact occurred at the rear portion of the toboggan. If the contact had been near the [*11] front of the toboggan, the snowboard would have hit the treads of the snowmobile and caused damage; there was no evidence of damage to the front of the snowboard. In Gardiner’s opinion, the force involved in Forrester’s fall would not have caused a lumbar disc injury and a concussion. Gardiner also testified that Medina’s view of the accident would have been obstructed by the snowmobile and its driver and that Wobrock’s animation of the incident was inconsistent with the laws of physics and Forrester’s testimony.

The defense pointed out the many inconsistencies between Medina’s deposition and his trial testimony, such as where he dropped off Forrester, whether Forrester wore a helmet, Forrester’s level of skill on a snowboard, the time they finished snowboarding, and whether Medina saw the snowmobile before the collision. Medina had changed his story only after talking to Forrester. The defense argued the differences between the testimony of Medina and Forrester as to the color of the snowmobile, the clothing of the driver, the location of the accident, and the timing showed that Forrester failed to carry his burden of proof as to what happened. The defense questioned how Forrester [*12] could fail to see or hear the snowmobile and offered three possibilities: (1) the collision had not happened; (2) Forrester was not paying attention; or (3) Forrester saw the snowmobile, but not the toboggan and tried to cut behind. The defense argued number three was the most reasonable and Forrester did not report the accident because he felt it was his fault.

Instructions

As relevant here, the court instructed the jury as follows:

“[CACI No.] 410. Dominique Forrester claims he was harmed while participating in snowboarding at the snow — at the Sierra at Tahoe Ski resort. To establish this claim Dominique Forrester must prove all of the following:

“1. That Sierra at Tahoe was the owner of the ski resort and that its employee was operating the snowmobile in issue in this case. Sierra at Tahoe admits that it is the owner of the ski resort and only its employee would have had access to and would have been operating a snowmobile on the ski resort.

“2. Dominique Forrester must also prove that Sierra at Tahoe unreasonably increased the risk to Dominique Forrester over and above those inherent in snowboarding;

“3. And Dominique Forrester must prove that Dominique Forrester was harmed; and lastly [*13]

“4. That Sierra at Tahoe’s conduct was a substantial factor in causing Dominique Forrester’s harm.

“[Modified CACI No.] 405. Sierra at Tahoe claims that Dominique contributed to his harm. To succeed on this claim, Sierra at Tahoe must prove the following:

“1. That Dominique Forrester assumed the risks that led to his injury; and

“2. That Dominique Forrester’s assumption of those risks was a substantial factor in causing his harm.

“If Sierra at Tahoe proves the above, Dominique Forrester’s damages are reduced by your determinations of the percentage of Dominique Forrester’s responsibility. I will calculate the actual reduction.”

Verdict and Motion for New Trial

During deliberations, the jury asked for a definition of “unreasonable” and to have Rice’s testimony about reports of emergencies that day reread. With the parties’ approval, the court responded to the first request as follows: “‘Unreasonable’ – is conduct that is contrary to conduct that a prudent person would exercise in the same or similar circumstances e.g. conduct that is careless, irrational, foolish, unwise, senseless, immoderate, exorbitant or arbitrary under the circumstances.”

By a vote of 10 to 2, the jury found Sierra did [*14] not unreasonably increase the risks to Forrester over and above those inherent in snowboarding in a ski area. Because the jury’s answer to this first question was “no,” it did not answer any additional questions contained in the verdict forms.

Forrester moved for a new trial, contending assumption of the risk did not apply to the case, there were evidentiary errors, and the court erred in not instructing on suppression of evidence. The court denied the motion.1

1 The record does not contain an order denying the motion. Under Code of Civil Procedure section 660, if there was no order, the effect is a denial of the motion.

DISCUSSION

I

Assumption of the Risk

A. The Law

“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” (Gregory v. Cott (2014) 59 Cal.4th 996, 1001, 176 Cal. Rptr. 3d 1, 331 P.3d 179.) “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.” (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751, 33 Cal. Rptr. 2d 732.)

“The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or [*15] reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration–or cause abandonment’ of the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156, 150 Cal. Rptr. 3d 551, 290 P.3d 1158.) “[U]nder the primary assumption of risk doctrine, operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity. (Id. at p. 1162.)

“Snowboarding is a classic example of a sport that requires participants to assume considerable risks.” (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 603, 13 Cal. Rptr. 3d 370 (Vine).) Courts have recognized many risks inherent in skiing and snowboarding. “Those risks include injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris. They also include collisions with other skiers, ski lift towers, and other properly marked or plainly visible objects and equipment.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, 37 Cal. Rptr. 3d 863.)

Whether the assumption of risk doctrine applies in a particular case is a question of law.”2 (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227, 132 Cal. Rptr. 3d 567.)

2 Although Forrester recognizes the question of whether assumption of the risk applies is a question of law reviewed de novo, he devotes a considerable portion of his briefing to arguing the trial court’s two analyses, first before trial and then on the motion for a new trial, were incorrect. “In reviewing a trial court’s decision, we review the result, not the reasoning.” (Florio v. Lau (1998) 68 Cal.App.4th 637, 653, 80 Cal. Rptr. 2d 409.)

B. Application to this Case

As we noted earlier, this case is unusual among liability cases in general because [*16] the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be. With this in mind, we turn to Forrester’s first claim of error.

Forrester contends a collision with a snowmobile is not an inherent risk of snowboarding. He argues that although some collisions–such as with trees or other skiers or snowboarders–are inherent risks, the line should be drawn at a collision between an individual and a motorized vehicle. He asserts assumption of the risk has no role in the circumstances he claims were present here: an unmarked snowmobile with no lights, siren or flag, operated by a non-safety employee on a busy beginner slope, contrary to the safety policies of the ski resort.

Sierra counters that the circumstances Forrester claims were present here, outlined immediately above, would have unreasonably increased the risks undertaken by Forrester had the jury found the circumstances were as Forrester alleged. Sierra [*17] argues that it is apparent from the jury’s “no” vote that it found circumstances more closely aligned to those alleged by the defense, such as the absence of any collision (and even the absence of any snowmobile) whatsoever and other facts favorable to Sierra.

We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.

On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.

In Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 45 Cal. Rptr. 2d 855 (Connelly), the plaintiff collided with an unpadded ski lift tower while skiing. In affirming summary judgment for the defendant, we found this risk was inherent in the sport, and the obvious danger of the tower served as its own warning. (Id. at p. 12.) In concluding that contact with the tower was an inherent risk of the sport, the Connelly court relied on Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 266 Cal. Rptr. 749, where a skier collided with a tree. Danieley, in turn, relied on a Michigan statute that set forth certain inherent risks of skiing, including both trees and “‘collisions with ski lift towers and their components'” along with properly marked or plainly visible “‘snow-making or snow-grooming [*18] equipment.'” (Id. at p. 123.) “[B]ecause the Michigan Ski Area Safety Act purports to reflect the pre-existing common law, we regard its statutory pronouncements as persuasive authority for what the common law in this subject-matter area should be in California.” (Ibid.)

In Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 41 Cal. Rptr. 3d 389 (Souza), a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run. Following Connelly, we affirmed summary judgment for the defendant, finding the snowmaking hydrant was visible and a collision with it was an inherent risk of skiing. (Id. at p. 268.)

A snowmobile is not one of the risks specifically identified in the Michigan Ski Area Safety Act, and we have not found a published case specifically deciding whether a collision on a ski slope with a snowmobile is an inherent risk of skiing or snowboarding. Nevertheless, collision with certain vehicles has been included. While Souza involved only stationary equipment, the Michigan Ski Area Safety Act–which Danieley and Connelly accepted as reflecting the common law–included a collision with snow-grooming equipment as an inherent risk. Thus, collisions with some vehicles are recognized as inherent risks of the sports of skiing and snowboarding.

We recognize that assumption [*19] of the risk applies only to risks that are necessary to the sport. (Souza, supra, 138 Cal.App.4th at p. 268.) In Souza, snowmaking equipment was necessary to the sport of skiing because nature had failed to provide adequate snow. (Ibid.) As in Souza, we find the following quote from Verro v. New York Racing Ass’n, Inc. (1989) 142 A.D.2d 396, 400, 536 N.Y.S.2d 262 apt: “As is at least implicit in plaintiff’s argument, if only the risks of ordinary and necessary dangers inherent in a sport are deemed assumed, the doctrine of [primary] assumption of risk . . . would not apply to obvious, known conditions so long as a defendant could feasibly have provided safer conditions. Then, obviously, such risks would not be ‘necessary’ or ‘inherent’. This would effectively emasculate the doctrine, however, changing the critical inquiry . . . to whether the defendant had a feasible means to remedy [the dangers].”

Forrester’s expert Penniman claimed snowmobiles were merely a convenience and a ski resort could operate without them. He also testified, however, that the use of snowmobiles was a standard practice at ski resorts. Although critical of their overuse, Penniman recognized their usefulness in an emergency. He agreed with Sierra’s policy, which permitted snowmobiles to be used on the ski slopes in cases of emergency, [*20] even on the busiest days. Thus Penniman agreed generally that the use of snowmobiles was necessary to ski resorts, although he disputed the specific circumstances under which that use might be warranted.

There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317, 79 Cal. Rptr. 2d 775.

At least one unpublished federal case has found a collision with a snowmobile to be an inherent risk of skiing or snowboarding. In Robinette v. Aspen Skiing Co., L.L.C. (D. Colo., Apr. 23, 2009, No. 08-CV-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, affd sub nom. Robinette v. Aspen Skiing Co., L.L.C. (10th Cir. 2010) 363 Fed.Appx. 547, the court found “the specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the ‘risks of skiing/riding.'” (Id. at p. *7.) The court reasoned that since “the legislature has seen fit to specifically enact safety measures to prevent skier-snowmobile collisions, one can [*21] hardly argue that such a collision somehow falls outside of [plaintiff’s] express assumption of ‘all risks of skiing.'”3 (Ibid.)

3 Although California has no similar regulation of snowmobiles at ski slopes, the requirements of the Colorado law are similar to Sierra-at-Tahoe’s policy for snowmobile operation. “All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following: One lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.” (Colo. Rev. Stat. Ann. § 33-44-108, subd. (3).)

Based on the foregoing, we conclude the trial court did not err in ruling that primary assumption of the risk applies in this case and instructing the jury accordingly. To the extent that the evidence showed a snowmobile was operating at the resort and involved in an collision with Forrester that day, its presence and that of related equipment (here apparently a towed toboggan) on the slope was an inherent risk of snowboarding at the resort. However, that risk may well have been unreasonably increased by Sierra if the specific circumstances alleged by Forrester regarding the snowmobile’s use at the time of the alleged collision were believed by the jury. But the jury was presented with a variety of competing scenarios as to what happened at the resort that day. Although we do not know which evidence it credited and which it did not, we know that it did not consider the specific circumstances of the snowmobile’s operation that day to have unreasonably increased the risk already present from the necessary use of snowmobiles at resorts.4

4 The better practice in cases such as this one, where key facts–here even the preliminary fact as to whether there was a collision at all, let alone a collision between a snowboarder and a snowmobile towing a toboggan–are in dispute, is to craft the special verdict form to require the jury to make preliminary factual findings, here such as whether the alleged accident occurred at all and the particulars, if so. (See CACI No. 410, Directions for Use [“There may also be disputed facts that must be resolved by a jury before it can be determined if the doctrine applies”], citing Shin v. Ahn (2007) 42 Cal.4th 482, 486, 64 Cal. Rptr. 3d 803, 165 P.3d 581.)

In arguing that a collision [*22] with a motorized vehicle is not an inherent risk, Forrester relies on out-of-state cases, some unpublished. We find those cases distinguishable or not persuasive. In Verberkmoes v. Lutsen Mountains Corp. (D. Minn. 1994) 844 F.Supp. 1356, a skier collided with an unmarked all terrain vehicle (ATV) parked on or near a groomed trail. The court denied summary judgment for the defendant, finding the hazard of the parked ATV was within the control of the ski resort, not an obvious risk like a lift tower, and not a hidden risk like a snow-covered stump. (Id. at pp. 1358-1359.) Defendant’s “parking of the ATV on the trail during routine maintenance of the ski slope cannot be deemed, as a matter of law, an inherent risk of skiing.” (Id. at p. 1360.) Rather, it was “a danger that reasonable prudence on the part [of defendant] would have foreseen and corrected or at least placed a warning for skiers.” (Id. at p. 1359.) We find Verberkmoes distinguishable, largely because the decision was based on where the ATV was parked; the ski resort could have easily parked it elsewhere or warned against the hazard. Here, the question was whether the resort’s use of snowmobiles on the ski slopes and consequential possibility of contact with snowboarders was an inherent risk of snowboarding.

In Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (D. Colo. 2015) 132 F.Supp.3d 1310, the defendant had argued that [*23] a collision with a snowmobile is an inherent danger and risk of skiing. The court had rejected this argument twice before, each time concluding “whether a collision with a snowmobile is an inherent danger or risk of skiing is not necessarily a question of law because what is an inherent danger or risk of skiing is not limited to the circumstances specifically enumerated in the [Ski Safety Act].” (Id. at p. 1316.) The court declined to address the argument again. (Ibid.)

We find this conclusory analysis unhelpful. For the reasons stated ante, we find a collision with a snowmobile is an inherent risk of snowboarding. As to whether this particular collision was the result of the inherent risk, the jury was properly tasked with determining whether Sierra’s operation of the snowmobile unreasonably increased the risk already inherent in snowboarding. This determination governed whether this particular collision was barred by the assumption of the risk doctrine.

Forrester also relies on an unpublished case from the state of Ohio, Coblentz v. Peters 2005 Ohio 1102, 2005 Ohio App. LEXIS 1073, that found use of a motorized golf cart was not “an actual part of the sport of golf,” so the risk of being struck and injured by a golf cart “is not an ordinary risk of the game.” [*24] (Id. at ¶ 21.) To the limited extent this case is analogous, we decline to apply its narrow analysis to the sport of snowboarding and the associated risk of encountering the resort’s necessary equipment when on the ski slopes. (See Souza, supra, 138 Cal.App.4th at p. 269 [finding snowmaking equipment necessary to the sport of skiing].)

As we have noted, unlike many assumption of the risk cases, including those cited ante, here there is a genuine factual dispute as to what happened to Forrester and caused his injuries. The jury needed to resolve this factual dispute in order to determine whether Sierra unreasonably increased the inherent risk. Accordingly, the issue of whether recovery is barred by assumption of the risk could not be determined as a matter of law, such as by a motion for summary judgment, as is often the case. Here, we need not decide if Forrester’s specific collision was an inherent risk, but only the broader question of whether a collision with a snowmobile operated on the ski slopes of a resort is an inherent risk of snowboarding. If so, recovery is still possible if Sierra unreasonably increased the risk by the specific circumstances surrounding its operation of the snowmobile.

“Although defendants generally [*25] have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, 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. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316, 11 Cal. Rptr. 2d 2, 834 P.2d 696.) Numerous cases have pondered the factual question of whether various ski resorts have increased the inherent risks of skiing or snowboarding. (See Vine, supra, 118 Cal.App.4th at p. 591 [redesign of snowboarding jump]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366, 114 Cal. Rptr. 2d 265 [construction of the unmarked race start area on the ski run]; Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th 1317 [placement of signs in ski run].)

Forrester contends that even if the ski patrol’s use of a snowmobile is necessary to support the sport of snowboarding, the evidence here showed the snowmobile was not used for that purpose. Indeed, he claims that because the members of the ski patrol on duty that day denied being involved in a collision, the evidence established that the snowmobile was driven by a non-safety employee. He argues the trial court was required [*26] to resolve factual questions as to whether a member of the ski patrol was using the snowmobile before it determined whether assumption of risk applied.

We disagree with Forrester that the trial court was required to resolve these factual questions before submitting the case to the jury. Resolution of the factual issues as to how and by whom the snowmobile was operated “requires application of the governing standard of care (the duty not to increase the risks inherent in the sport) to the facts of this particular case–the traditional role of the trier of fact.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112, 86 Cal. Rptr. 3d 588.) “Our conclusion it is for the trier of fact to determine whether Vela breached his limited duty not to increase the risks inherent in the sport of volleyball finds solid support in the Supreme Court’s most recent sports injury, primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482 . . . . In Shin the Supreme Court affirmed the trial court’s denial of a motion for summary judgment brought by a golfer who had struck one of his own playing partners with a tee shot. The court held the primary assumption of the risk doctrine regulates the duty a golfer owes both to playing partners and to other golfers on the course, found being hit by a stray [*27] golf shot was an inherent risk of the sport and concluded ‘golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.”‘ [Citation.] However, the Court also held whether the defendant had breached that limited duty of care by engaging in reckless conduct was a question for the trier of fact: ‘In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. . . . [¶] Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. . . . [¶] . . . This record is simply too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly. This will be a question the jury will ultimately resolve based on a more complete examination of the facts.’ [Citation.]” (Luna, at pp. 112-113.) “In light of the Supreme Court’s decision in Shin, we conclude as the Luna court did, that resolving the question of whether [defendant] increased the risk of falling is properly decided by the trier [*28] of fact.” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1062, 183 Cal. Rptr. 3d 566.)

Forrester’s argument about the circumstances of the snowmobile’s use that day is premised upon the jury’s accepting his version of events–that a snowmobile hit him from behind, while driven by a non-safety employee who was not responding to an emergency and who was operating without lights, siren, or flag and contrary to numerous safety policies of Sierra. In short, Forrester assumes that the snowmobile had no legitimate reason to be on Broadway at the time of the incident. But the state of the evidence was such that the jury could decide otherwise. Due to Forrester’s failure to report the accident when it happened, the conflicting testimony of Forrester and Medina, the conflict in expert testimony as to how a collision would have occurred and what caused Forrester’s injuries, and the absence of any independent witness who saw or even heard about the accident, the jury could have rationally concluded the accident did not happen at all. Alternatively, the jury could have concluded that Forrester hit the toboggan out of carelessness or recklessness, Forrester’s injuries were not from the collision, or simply that Forrester failed to prove his version of the accident.

This [*29] case turned in large part on the jury’s assessment of credibility. There was evidence from which the jury could conclude that the incident occurred as described by Forrester and Medina, and that Sierra unreasonably increased its visitors’ inherent risk of a collision with a snowmobile accordingly–because a non-safety employee, not responding to an emergency, drove a snowmobile at significant speed across a beginner run on the busiest day of the year without using lights, siren or a flag, and in contravention of numerous safety policies. These circumstances, or any combination thereof, could certainly constitute an unreasonable increase of the inherent risk by Sierra. Forrester’s theory was tendered to the jury and the jury decided adversely to his argument. Forrester does not challenge the sufficiency of the evidence to support the verdict.

The trial court did not err in determining assumption of the risk applied and submitting the case to the jury on the question of whether Sierra unreasonably increased the risk inherent in the sport of snowboarding.

II

Instruction on Secondary Assumption of the Risk

A. Background

As we set forth ante, the jury was also instructed pursuant to CACI No. 405–the comparative [*30] fault instruction modified by the trial court–as to secondary assumption of the risk. The jury was told that in order for Sierra to succeed on its claim that Forrester contributed to his own harm, Sierra would need to prove both that Forrester assumed the risks that led to his injury and that Forrester’s assumption of those risks was a substantial factor in causing his harm.

The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). [Citation.] In the latter class of cases, we concluded, the issue could be resolved by applying the doctrine of comparative fault, and the plaintiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal. Rptr. 3d 103, 75 P.3d 30.)

“Secondary assumption [*31] of risk [arises] where a defendant breaches a duty of care owed to the plaintiff but the plaintiff nevertheless knowingly encounters the risk created by the breach. Secondary assumption of risk is not a bar to recovery, but requires the application of comparative fault principles.” (Connelly, supra, 39 Cal.App.4th at p. 11.)

B. Analysis

Forrester contends the special instruction on secondary assumption of the risk was incorrect because it omitted the requirement that a plaintiff “knowingly” or “voluntarily” accept the increased risk, and because the court failed to set it apart from the instruction related to primary assumption of the risk. Forrester contends the error prejudiced him because it confused the jury on the law.

As Sierra does not defend the instruction, we will assume arguendo that it is incorrect for omitting “knowingly” or “voluntarily.” We reject, however, the argument that it was error to instruct on secondary assumption of the risk immediately after instructing in the language of CACI No. 410 on primary assumption of the risk. Each instruction begins by noting the party whose claim the instruction addresses and what each party must prove to succeed on its claim. The two claims are necessarily related. “Nevertheless, in [*32] certain circumstances primary and secondary assumption of risk are intertwined and instruction is required so the jury can properly determine whether the defendant did, in fact, increase the risks inherent in a hazardous sport so that secondary assumption of risk should be considered.” (Vine, supra, 118 Cal.App.4th at p. 592.)

“Cases like this one, where the plaintiff contends the defendant breached the duty not to increase the risks inherent in a hazardous sporting activity, present both aspects of the assumption of risk doctrine. If the plaintiff fails to show any increase in the inherent risks, or if the trial court determines that the only risks encountered were inherent in the sport, the defendant prevails based on primary assumption of risk. If the jury, properly instructed on the scope of the defendant’s duty, determines the defendant did increase the inherent risk, it then considers the plaintiff’s claim based on secondary assumption of risk as an aspect of the plaintiff’s comparative fault.” (Vine, supra, 118 Cal.App.4th at p. 593.)

“[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case [*33] ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580, 34 Cal. Rptr. 2d 607, 882 P.2d 298 (Soule).)

“Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule, supra, 8 Cal.4th at p. 580.) Actual prejudice must be assessed in the context of the entire record using a multifactor test. (Ibid.) “Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)

Forrester contends the record demonstrates prejudice because there was strong evidence that Sierra increased the risk by its operation of a snowmobile that day, the jury deliberated for two full days, and the request for a definition of “unreasonable” suggests the jury was confused as to the law.

We disagree that the record shows it was “probable” that the instructional error “prejudicially affected the verdict.” (Soule, supra, 8 Cal.4th at p. 580.) As we have discussed, the evidence raised questions [*34] of witness credibility, and the jury was also called upon to consider conflicting expert testimony. The jury heard five days of evidence and deliberated for two days. In that circumstance, the jury’s two days of deliberation may suggest its “conscientious performance of its civic duty, rather than its difficulty in reaching a decision.” (People v. Walker (1995) 31 Cal.App.4th 432, 439, 37 Cal. Rptr. 2d 167 [six and one-half hours of deliberation after two and one-half hours of presentation of evidence].) The jury’s request for a definition of “unreasonable” and its request for a reread of evidence as to whether there was an emergency that day indicate the jury was most likely focused on Sierra’s conduct, not Forrester’s.

The most useful guide for the jury in sorting through the issues of primary and secondary assumption of the risk was the verdict form that separated the issues. The verdict form asked six questions; only if the jury answered yes to a question was it to proceed to the next question. The questions were: (1) Did Sierra or its employee unreasonably increase the risks inherent in snowboarding? (2) Was this unreasonable increase in the risks a substantial factor in causing harm to Forrester? (3) What are Forrester’s total damages? (4) Did [*35] Forrester assume the risks that led to his injury? (5) Was that assumption of risk a substantial factor in causing his injury? (6) What percentage of responsibility for Forrester’s harm do you assign to Sierra, to Forrester? The jury answered the first question “no” and therefore did not answer any other questions. Accordingly, the jury never reached the issue of secondary assumption of risk and thus never had to apply the challenged jury instruction. Forrester has failed to show prejudicial instructional error. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 206, 48 Cal. Rptr. 2d 448 [error to grant new trial due to instructional error when jury never reached issue covered by instruction]; Vahey v. Sacia (1981) 126 Cal.App.3d 171, 179-180, 178 Cal. Rptr. 559 [purported instructional error on damages was not prejudicial where jury found the defendant was not negligent and never reached the issue of damages].)

III

Refusal to Instruct on Willful Suppression of Evidence

A. Background

At trial, Forrester made much of the fact that the snowmobile’s driver was never identified, which he blamed on Sierra’s failure to retain the daily checklist completed by the driver who had taken out the snowmobile that day. Before trial, Forrester sought to admit Sierra’s special ski permit and winter operation plan from the United States Forest [*36] Service. He argued Sierra was required to maintain the checklist under the document retention policy set forth in that plan. The trial court excluded the document, ruling that whether Sierra had a contractual duty to retain the report was irrelevant, particularly because–given the evidence that the snowmobile could be used by multiple people in the same day–the checklist would not necessarily indicate who was driving a snowmobile at the time of the alleged accident. The court noted that Sierra had provided Forrester with a list of 19 authorized drivers.

Forrester requested that the trial court give CACI No. 204, which provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” The request was based on evidence that MacClellan failed to interview all 19 people authorized to use a snowmobile that day and the destruction of the checklist. The court denied Forrester’s request.

Forrester raised the failure to give CACI No. 204 in his motion for a new trial.

B. Analysis

Forrester contends it was error to refuse the requested instruction. For the first time on appeal, he asserts [*37] the snowmobile driver’s leaving the scene of the accident without identifying himself was sufficient evidence to support the instruction. As to the destruction of the checklist, the basis for instruction advanced at trial, Forrester argues there was no evidence the checklist was actually discarded, only that the practice was to discard the checklists daily. He contends he was prejudiced by lack of the instruction because he could not argue the presumption that the destroyed evidence was unfavorable to Sierra to offset the inability to identify the driver.

“A party is entitled to have the jury instructed on his theory of the case, if it is reasonable and finds support in the pleadings and evidence or any inference which may properly be drawn from the evidence.” (Western Decor & Furnishings Industries, Inc. v. Bank of America (1979) 91 Cal.App.3d 293, 309, 154 Cal. Rptr. 287.) An instruction on willful suppression of evidence is appropriate if there is evidence “that a party destroyed evidence with the intention of preventing its use in litigation.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434, 86 Cal. Rptr. 3d 457.)

First, Forrester did not rely at trial on the theory that evidence was destroyed when the snowmobile driver left without identifying himself. “‘A civil litigant must propose complete instructions in accordance with his or her theory of the litigation [*38] and a trial court is not “obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.” [Citations.]’ [Citation.]” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653, 57 Cal. Rptr. 2d 525.) Thus we need not consider this new theory first advanced on appeal.

Further, the evidence established the checklist had been discarded shortly after the accident, before Forrester made his complaint. While there was no testimony from the person who discarded the checklist for that day and MacClellan testified he did not know if the specific checklist had been discarded, Rice testified the checklists were thrown out on a daily basis and MacClellan testified he knew they were thrown out shortly after they were filled out.

Forrester relies on Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 150 Cal. Rptr. 3d 861, claiming it is “right on point.” In Ventura, a negligent hiring and supervision case, the trial court gave the instruction at issue here based on testimony of the human resources director about redactions in personnel records and the defendant’s failure to interview certain witnesses during the investigation of plaintiff’s complaints. (Id. at p. 273.) The appellate court found no error, noting “Defendants were free to present the jury with evidence that (as counsel represented to the [*39] court), the redactions were only of telephone numbers, and that the failure to interview certain witnesses was proper, and to argue that evidence to the jury.” (Ibid.)

Ventura is distinguishable. There, the actions that supported the instruction occurred during the investigation of plaintiff’s claim, thus permitting an inference there was destruction of evidence to prevent its use in litigation. Here, the evidence was that the snowmobile checklists were routinely discarded each day long before the incident at issue here, unless information on the checklist triggered a need for maintenance. Because Forrester did not report his accident until multiple days had passed, Sierra did not become aware of Forrester’s claim until after the checklist at issue had been discarded. There was no evidence, either direct or from which the inference could be drawn, that the practice of discarding the checklists daily was intended to forestall their use in litigation.

The trial court did not err in declining to give CACI No. 204 on willful suppression of evidence.5

5 Further, Forrester’s claim of prejudice is unconvincing. The instruction permits the jury to draw the inference that the suppressed evidence would have been unfavorable to the party suppressing it. The checklist would have shown, at most, the name of the snowmobile driver. Sierra stipulated that the driver was one of its employees and provided Forrester with a list of authorized drivers.

DISPOSITION

The judgment is affirmed. Sierra shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/s/ Duarte, J.

We concur:

/s/ Butz, Acting P. J.

/s/ Mauro, J.


2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of March 10, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Are non-skiing/boarding fatalities that occurred inbounds on the slopes

Fatality while sledding at the Resort is in Green

2013 – 2014 Ski Season Fatalities

Date State Resort Where Trail Difficulty How Cause Ski/ Board Age Sex Home Helmet Ref Ref
12/11 CO Telluride Pick’NGad struck a tree 60 M Norwood CO No http://rec-law.us/190al75 http://rec-law.us/1fchteM
12/12 VT Killington Great Northern Trail Found 21 F PA No http://rec-law.us/1csgWCg
12/16 WA Crystal Mountain Resort Tinkerbell Beginner Lost control and veered off the trail Blunt Force Trauma F Yes http://rec-law.us/Jc4MX3
1/1 WV skiing into a tree M Opp, AL http://rec-law.us/1a6nAkQ
12/19 CO Winter Park Butch’s Breezeway Beginner blunt force injury to the head 19 M Yes http://rec-law.us/1f3ekSy
12/21 CA Heavenly Resort colliding with a snowboarder and being knocked into a tree 56 F NV No http://rec-law.us/JRiP4c http://rec-law.us/1a7REMW
1/11 CO Aspen Belisimo Intermediate hitting a tree Skier 56 M CO Yes http://rec-law.us/1hNbHoz http://rec-law.us/JTr7sY
1/11 MT Whitefish Mountain Resort Gray Wolf and Bighorn Found in a tree well Skier 54 M CA http://rec-law.us/1kx1deP
1/11 VT Stratton Mountain Resort Lower Tamarac Sledding Sledding 45 M NJ No http://rec-law.us/19x4mXb http://rec-law.us/1aRlxS5
1/14 NV Mount Charlteston Terrain Park Fall in Terrain Park Blunt Force Trauma Boarder 20 M NV No http://rec-law.us/1dsDW8B http://rec-law.us/1dyT1Hc
1/17 VT Killington Mouse Trap Trail Striking a tree Boarder 23 M NY http://rec-law.us/1dFfY9j http://rec-law.us/1dKUf0v
1/25 NM Ski Apache Intermediate Struck a Tree Skier 23 F TX http://rec-law.us/1n3PCCM http://rec-law.us/M5qA85
1/25 WA Ski Bluewood Country Road run Beginner Found at top of trail blunt force abdominal injury Skier 14 M WA No http://rec-law.us/1eaGBUM http://rec-law.us/1b4oewr
1/28 UT Deer Valley Keno Ski Run Intermediate hit a tree Skier 65 M FL Yes http://rec-law.us/1eg70Ax http://rec-law.us/1hRbIVm
2/1 VT Sugarbush Ski Resort Lower Rim Run and Lower FIS trails went off the trail and hit a trail sign broken neck Skier 19 F http://rec-law.us/1aeVJ3V http://rec-law.us/1j4jIpF
2/4 ME Sugarloaf resort Hayburner Expert skiing off a trail into trees Skier 21 M NY Yes http://rec-law.us/1fQtrMz http://rec-law.us/1b1OkG0
2/4 CA Heavenly Ski resort upper Nevada Woods Expert Closed area blunt force trauma Boarder 18 M Kings Beach, CA Yes http://rec-law.us/1byr68d http://rec-law.us/1b5exDA

2/7 CO Beaver Creek lower section of Beaver Creek suffered trauma injuries Skier 64 M St Louis, Mo http://rec-law.us/1ns4Hvu
2/8 CO Keystone Ski Area Porcupine and Bighorn Intermediate crashed into a tree blunt-force trauma Skier 46 M Yes http://rec-law.us/Nph8Oa
2/16 MT Whitefish Mtn Resort between Hollwood & Silvertip fell into treewell Skier 48 M Calgary, Alberta http://rec-law.us/1nKj8eh http://rec-law.us/1clTCu3
2/17 WA Stevens Pass Corona Bowl Expert hit head on rock major trauma Boarder 31 M No http://rec-law.us/O48FQH http://rec-law.us/1oRNQFT
2/18 VT Stowe Upper Gondolier hit another skier before sliding into trail sign Skier 30 M Brooklyn, NY Yes http://rec-law.us/1fkn5pt
2/19 WA Crystal Mountain Found in tree well Boarder 35 M Seattle, WA http://rec-law.us/1ffs2kY
3/5 PA Heavenly Valley collided with a tree internal bleeding from blunt-force trauma Boarder 21 M Warren, PA Yes http://rec-law.us/PRTn2a http://rec-law.us/1k4m72J
3/10 CO Copper Mountain Vein Glory Beginner striking a tree Boarder 22 M Denver, CO No http://rec-law.us/1kJvtTc
3/16 NY Whiteface Mountain trail and hit a tree Boarder 22 M Hemlock, NY http://rec-law.us/1gFq34F http://rec-law.us/1mfoli0
3/18 CO Snowmass Gunner’s View trail intermediate collided with a tree hemorrhagic shock due to pelvic trauma Boarder 54 M Germany Yes http://rec-law.us/OAM3Hn
3/21 WA Mission Ridge Ski & Board Resort Kiwa run ski dislodged from its binding Ski 47 M Seattle, WA http://rec-law.us/1jreZv1
3/22 VT Stratton Mountain Ski Resort 91 Trail Veered off the trial & crashed into a sign boarding 16 M Boston, MA http://rec-law.us/1jBxxIX http://rec-law.us/1oZzuSX
3/27 CO Keystone Resort intermediate lost control & hit a tree blunt force trauma Skier 60 M Charlotte, NC Yes http://rec-law.us/1dV5lgV http://rec-law.us/O6FJ9R
3/28 CO Snowmass Elk Camp Chairlift at the top of Sandy Park collision with another skier that led to Cohen hitting a tree multiple injuries Skier 45 M Cincinnati, OH Yes http://rec-law.us/1dHi0co http://rec-law.us/1dHi0co
4/1 WY Jackson Hole Pair-a-Chutes ( The Parachutes) collided with a tree significant body trauma Skier 31 M Jackson Hole, WY & PA http://rec-law.us/1dN158G http://rec-law.us/1ebWibv
4/3 CO Snowmass Cirque Headwall multiple chest injuries Skier 47 M Yes http://rec-law.us/PyekPa http://rec-law.us/1lA1H1g
4/6 CA Northstar Rail Splitter Advanced crashing into a tree Skier 67 M Van Nuys, CA Yes http://rec-law.us/1fWUnLK
4/6 NY Lake Placid Excelsior lost control and struck a tree Boarder 22 M Canandaigua, NY No http://rec-law.us/PG1Hls http://rec-law.us/1mUlNpW

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

If you are unable to view the entire table click on the

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

jim@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of February 10, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Are non-skiing/boarding fatalities that occurred inbounds on the slopes

Fatality while sledding at the Resort is in Green

2013 – 2014 Ski Season Fatalities

#

Date

State

Resort

Where

Trail Difficulty

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

Ref # 2

1

12/11 CO Telluride Pick’N Gad Left the ski run, struck a tree and suffered fatal injuries 60 M Norwood, CO No http://rec-law.us/190al75 http://rec-law.us/1fchteM

2

12/12 VT Killington Great Northern Trail Found 21 F PA No http://rec-law.us/1csgWCg

3

12/16 WA Crystal Mountain Resort Tinkerbell Beginner Lost control and veered off the trail Blunt Force Trauma F Yes http://rec-law.us/Jc4MX3
4 1/1/14 WV skiing into a tree M Opp, AL http://rec-law.us/1a6nAkQ
5 12/21 CA Heavenly Resort colliding with a snowboarder and being knocked into a tree 56 F NV No http://rec-law.us/JRiP4c http://rec-law.us/1a7REMW
6 12/19 CO Winter Park Butch’s Breezeway Beginner blunt force injury to the head 19 M Yes http://rec-law.us/1f3ekSy
7 1/11 CO Aspen Bellisimo Inter hitting a tree Ski 56 M CO Yes http://rec-law.us/1hNbHoz http://rec-law.us/JTr7sY
8 1/11 MT Whitefish Mountain Resort Gray Wolf and Bighorn Found in a tree well Ski 54 M CA http://rec-law.us/1kx1deP
9 1/11 VT Stratton Mountain Resort Lower Tamarac Sledding Sledding 45 M NJ No http://rec-law.us/19x4mXb http://rec-law.us/1aRlxS5
10 1/14 NV Mount Charleston Terrain Park Fall in terrain park blunt-force trauma Boarder 20 M NV No http://rec-law.us/1dsDW8B http://rec-law.us/1dyT1Hc
11 1/17 VT Killington Mouse Trap Trail striking a tree Boarder 23 M NY http://rec-law.us/1dFfY9j http://rec-law.us/1dKUf0v
12 1/25 NM Ski Apache Inter struck a tree Skier 23 F TX http://rec-law.us/1n3PCCM http://rec-law.us/M5qA85
13 1/25 WA Ski Bluewood Country Road run Beginner Found at top of trail blunt force abdominal injury Skier 14 M WA No http://rec-law.us/1eaGBUM http://rec-law.us/1b4oewr
14 1/28 UT Deer Valley Keno ski run Inter hit a tree Skier 65 M FL Yes http://rec-law.us/1eg70Ax http://rec-law.us/1hRbIVm
15 2/1 VT Sugarbush Ski Resort Lower Rim Run and Lower FIS trails went off the trail and hit a trail sign broken neck Skier 19 F Newport, RI http://rec-law.us/1aeVJ3V http://rec-law.us/1j4jIpF
16 2/4 ME Sugarloaf resort Hayburner Expert skiing off a trail into trees Skier 21 M Hoosick Falls, NY No http://rec-law.us/1fQtrMz http://rec-law.us/1b1OkG0
17 2/4 CA Heavenly Ski Resort upper Nevada Woods Expert Closed area blunt force trauma Boarder 18 M Kings Beach, CA Yes http://rec-law.us/1byr68d http://rec-law.us/1b5exDA
18 2/8 CO Keystone Resort Porcupine and Bighorn Intermediate crashed into a tree blunt-force trauma Skier 46 M Yes http://rec-law.us/Nph8Oa
19 1/31 PA Seven Springs Mountain Resort hit a fence closed-head injury and a cervical spine fracture Skier 52 F Westmoreland County, PA http://rec-law.us/1lWLt5C http://rec-law.us/1h4zhOc
20 2/7 CO Beaver Creek lower section of Beaver Creek suffered trauma injuries Skier 64 M St. Louis, Mo http://rec-law.us/1ns4Hvu

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

jim@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Skier, Snowboarder, Ski Area, Fatality, Telluride, Killington, Crystal Mountain Resort, Heavenly Resort, Winter Park, Aspen, Whitefish Mountain Resort, Stratton Mountain Resort, Mount Charleston, Killington, Ski Apache, Ski Bluewood, Sugarloaf,
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2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of January 13, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Are non-skiing/boarding fatalities that occurred inbounds on the slopes

Fatality while sledding at the Resort is in Green

2013 – 2014 Ski Season Fatalities

#

Date

State

Resort

Where

Trail Difficulty

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

 

 

1

12/11

CO

Telluride

Pick’N Gad

 

Left the ski run, struck a tree and suffered fatal injuries

 

 

60

M

Norwood, CO

No

http://rec-law.us/190al75

http://rec-law.us/1fchteM

 

2

12/12

VT

Killington

Great Northern Trail

 

Found

 

 

21

F

PA

No

http://rec-law.us/1csgWCg

 

 

3

12/16

WA

Crystal Mountain Resort

Tinkerbell

Beginner

Lost control and veered off the trail

Blunt Force Trauma

 

 

F

 

Yes

http://rec-law.us/Jc4MX3

 

 

4

1/1/14

WV

 

 

 

skiing into a tree

 

 

 

M

Opp, AL

 

http://rec-law.us/1a6nAkQ

 

 

5

12/21

CA

Heavenly Resort

 

 

colliding with a snowboarder and being knocked into a tree

 

 

56

F

NV

No

http://rec-law.us/JRiP4c

http://rec-law.us/1a7REMW

 

6

12/19

CO

Winter Park

Butch’s Breezeway

Beginner

 

blunt force injury to the head

 

19

M

 

Yes

http://rec-law.us/1f3ekSy

 

 

7

1/11

CO

Aspen

Bellisimo

Inter

hitting a tree

 

Ski

56

M

CO

Yes

http://rec-law.us/1hNbHoz

http://rec-law.us/JTr7sY

 

8

1/11

MT

Whitefish Mountain Resort

Gray Wolf and Bigho

 

Found in a tree well

 

Ski

54

M

CA

 

http://rec-law.us/1kx1deP

 

 

9

1/11

VT

Stratton Mountain Resort

Lower Tamarac

 

Sledding

 

Sledding

45

M

NJ

No

http://rec-law.us/19x4mXb

http://rec-law.us/1aRlxS5

 

10

1/14

NV

Mount Charleston

 

Terrain Park

Fall in terrain park

blunt-force trauma

Boarder

20

M

NV

No

http://rec-law.us/1dsDW8B

http://rec-law.us/1dyT1Hc

 

11

1/17

VT

Kilington

Mouse Trap Trail

 

striking a tree

 

Boarder

23

M

NY

 

http://rec-law.us/1dFfY9j

http://rec-law.us/1dKUf0v

 

12

1/25

NM

Ski Apache

 

Inter

struck a tree

 

Skier

23

F

TX

 

http://rec-law.us/1n3PCCM

http://rec-law.us/M5qA85

 

13

1/25

WA

Ski Bluewood

Country Road run

Beginner

Found at top of trail

 

Skier

14

M

WA

 No

http://rec-law.us/1eaGBUM

 http://rec-law.us/1b4oewr

 

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

jim@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Skier, Snowboarder, Ski Area, Fatality, Telluride, Killington, Crystal Mountain Resort, Heavenly Resort, Winter Park, Aspen, Whitefish Mountain Resort, Stratton Mountain Resort, Mount Charleston, Killington, Ski Apache, Ski Bluewood,

 

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Misleading article from the Denver Post about CO Ski areas; but also just plain wrong

I lost a lot of respect for the Denver Post today.

This is my review of an article titled Colorado system for investigating ski accidents raises concerns in the Denver Post Sunday March 17, 2013.

First of all, let’s correct the article from a legal and factual standpoint!

When someone dies or is seriously injured on a Colorado ski slope, it is ski patrollers — not trained police officers, sheriff’s deputies or forest rangers — who document and determine what happened.

This statement is false if you believe it says no one else can investigate. The statement is misleading in that it makes you think no one else investigates major accidents.

Law Enforcement Investigates Possible Crimes.

It is patrollers that investigate on behalf of the ski area. No patroller investigates on behalf of anyone else, nor can they. They have not been licensed, trained nor are they allowed to. If someone else wants to investigate, they can use the powers given to them by contract (US Forest Service) or jurisdiction (Sheriff) and investigate.

Ski Patrollers don’t determine who is at fault; they try to determine what happened. That is all they are trained to do and that is all you want them to do. Volunteers and poorly-paid hard-working men and women are ski patrollers. The have been trained to get injured people off the mountain as best they can.

Any law enforcement agency with jurisdiction could investigate if they wanted to. They do not need permission; they just access the land and go investigate.

The reason why most law enforcement agencies do not investigate was set out in the article, just not recognized as the answer to their own question the article asked.

Many times, those agencies — responsible for investigating potential criminal activity, not skiing accidents — aren’t called at all.

Unless there has been a crime, law enforcement has no duty to investigate. If they investigated every crash, they would still be working on my mountain-bike crashes from last summer on US Forest Service and BLM (Bureau of Land Management) land.

Information

As a result, family members may have to accept the word of a resort employee about the circumstances that led to their relative’s death or serious injury — and typically; they need a subpoena to get even that, attorneys say.

Getting information from the resorts is difficult. Normally, the resort requires that you prove a legal need; you must be a relative or the injured person. Resorts have reasons for this. You do not want this information to go to anyone but the family because of privacy issues.

What if your relative died or was hurt at a resort? Would you be interested in having any of the following in the public domain?

·         The injured skier smelled like alcohol. His blood-alcohol level was 2.8.

·         The witness, girlfriend of the injured said…… (Spouse was home with the kids.)

·         The injured commented that’s the last time he calls in sick to work and goes skiing.

I’ve read reports with 2 of the above on the reports, and I’ve heard about the third. Is that information you want to be public about someone you love?

What about hearing about the fatality of a family member from the authorities before you read about it online? This article ignores those issues, but ski resorts try to respect the wishes of family members.

Is your need to know greater than their right to a little kindness and privacy?

What information can you get from AT&T, Exxon, or GE about their latest accidents? Unless a business is required to report certain kinds of accidents, No Business gives out its accident reports.

If you ask an attorney to get you a report, the ski area is going to respond as if the ski area is going to be sued. Consequently, when facing a lawsuit, you shut the doors. If you want a copy of the report from your or a close family member’s accident, send a letter. You won’t get names or contact information of the patrollers. It is not their job to deal with you.

Of the state’s 25 ski areas, only one — Wolf Creek Ski Area — would discuss ski-patrol training and accident investigations.

Most resorts, nationwide follow the procedures of the National Ski Patrol (NSP). Every resort differs from other ski areas, but in general, you can research how something is investigated by reviewing the NSP website and several other websites. How do you know how law enforcement investigates accidents?

The other 24 resorts either refused to answer questions regarding ski patrol or did not respond to repeated calls and e-mails from The Post.

If someone from the press, including me, is calling to ask questions, you get a little nervous. You should be nervous when I call, and I get nervous when the press calls.

While working at a resort, I received a phone call from a member of the press who said they were writing a follow-up article to one I had written for a magazine several years before. That person lied to me. They were writing an article about ski resorts and quoted me as an employee of the resort. Lesson learned.

Police jurisdiction rare

That is a very misleading heading, sorry, this is a lie. Not rare, it exists at every resort. It is just not exercised. The sole power to exercise the jurisdiction is the law enforcement agency or the district attorney. Just because they do not, does not mean jurisdiction does not exist. There is no place in the US where at least one law enforcement agency has jurisdiction. The hard thing is finding places in the US were only one law enforcement agency has jurisdiction.

The nice thing about the above heading is just the start of an entire misleading paragraph.

Jennifer Rudolph, spokeswoman for Colorado Ski Country USA, the trade group representing all of the ski areas except the four owned by Vail Resorts, said in an e-mail….

Colorado Ski County USA is a marketing group. Its job and why it is paid by the Colorado Ski resorts is to get skiers to ski in Colorado. If you don’t believe me, go to the website and read why it exists: http://rec-law.us/ZoYVRs

Only a few local police departments have any jurisdiction over ski areas, and sheriff’s offices in Summit, San Miguel, Pitkin, Garfield, Routt and Eagle counties said their role is primarily to determine whether an incident involves a crime — such as theft, public intoxication or disruption — or a collision between slope users.

See the above statement about jurisdiction. The statement in the article is absolutely wrong and very misleading. It implies that the ski resorts operate without any law enforcement agency watching what they do. That is not true. If you could find a place where no law enforcement had jurisdiction in the US it would be crowded, full of pot plants and a lot of illegal guns. There would also be hundreds of cops waiting for someone to leave.

Summit County sheriff’s deputies don’t “respond to the majority of skier accidents. If it’s a death, the coroner would respond,” said spokeswoman Tracy LeClair. “Ski patrol usually handles the majority of noncriminalaccidents.”

Let’s look at this article this way.  Who investigates accidents in your house? At least at ski areas, someone does. If there is a fatality at your house, then the same person investigates the fatality in your house as at the slopes: A coroner, unless the accident or fatality is a criminal act.

A coroner’s job is to declare people dead (C.R.S. § 30-10-601) and to determine the cause of death if it is not known or suspicious or from specific causes. (C.R.S. § 30-10-606)

“Ski patrol is there before us. Sometimes, the injured person has been evacuated before we arrive,” he said. “We have to rely on ski patrol and their analysis quite often.”

Thank Heavens! Seriously do you want to wait on the slope with a broken leg or a torn ligament until law enforcement drives from the sheriff’s office puts on skis or unloads a snow machine and comes up the slopes to you?

That is why we have the ski patrol; to get injured people to medical care. Can you see the lawsuit if this occurred? “Sorry mam, I can’t move you with that broken leg until the sheriff investigates.”

If you fall down in your house, do you call the police or the ambulance? If you fall down on the ski slopes do you call the sheriff or the ski patrol?

Sometimes, ski areas don’t give law enforcement information needed for an investigation. In 2004, a Colorado State Patrol sergeant was called to Vail to look into a fatal collision between a 13-year-old skier and an employee-driven snowmobile. He had never investigated a ski injury or fatality.

Sgt. S.J. Olmstead was assigned to the case because county law enforcement “didn’t want to deal with it,” he said in a 2006 deposition. “So somebody had to go take care of it.”

First: The story itself says there have been 47 deaths within five years (from my count of the red dots on the map.) How many police officers would have experience in investigating fatalities that occur on ski resorts?

Second: Vail is the largest employer in Eagle County. Probably, the Eagle County Sheriff’s department saw the fatality the article speaks to as a conflict of interest. Maybe the sheriff’s department knew the snowmobile driver’ or the snowmobile driver’s family. Or members of the sheriff’s department witnessed the accident. There could be dozens of things that triggered a conflict of interest issue in the mind of the Eagle county Sheriff’s department.

And thank heavens it did. Would you buy 100% any report when the Eagle County Sheriff’s department investigates a crime in the ski area of the county’s largest employer who had obvious conflicts of interest?

If you want ski accidents investigated by trained personnel, then contact your representative and have them create a law that says the sheriff’s office shall investigate all ski accidents. (Have fun paying for that one also.)

Third: If you have ever watched TV and watched a cop show, when an arrest is made the bad guy is given their Miranda Warnings, their legal rights. They have the right to remain silent. Vail, could have been held liable for the death, criminally; consequently, during a criminal investigation, the possible criminal should keep their mouth shut!

Ski areas consider ski-patrol and employee reports to be proprietary information. Therefore, victims or their families or law enforcement agencies cannot obtain them without the resorts’ permission — or a court order.

That information is not considered proprietary information, that information is proprietary information. My notes are proprietary information. The recipe you wrote down on a 3 x 5 card is proprietary or confidential information. Work you produce for work is proprietary information.

And again, do you really want your great Aunt Sally learning that her niece died in a ski accident because she was drunk?

I won’t give up my documents to anyone.

What about the rights of the deceased or the deceased family. Information in that report could be embarrassing. Deceased had a blood alcohol level of XX.X. Deceased was skiing with his girlfriend, while his wife was working. Deceased was supposed to be at work. Do you want that information floating around to members of the media or just nosey people?

The press has this idea that they should be entitled to anything they want to report a story. They don’t. There are laws that say what the media, the police and/or any other group can get from a private party or a business.

Then the article starts to complain because the ski patrol investigates an accident, and the cops don’t. The cops plead that they have a hard time getting reports from the ski patrol.

Have you tried getting a police report about an accident from a law enforcement agency? If the police want a report, they should go do it. It takes them a while to get to the far ends of the county, and it takes them a while to hike into the back country or get up the hill at a ski resort. It is a fact of life of a state with lots of wilderness and open space.

Despite the power that ski patrols have,…

What power? The power of the ski patrol is solely the power to transport an injured person down the hill and yank lift tickets of reckless skiers. They are not vested with power or given power by anyone to do anything.

The ski patrol does not have the power to detain someone who is involved in a skier v. skier collision, let alone any other power.

Accident Investigations?

This big issue with accident investigations is confusing. I’ve never had anyone investigate my mountain-bike crashes on US Forest Service land. I’ve never had someone investigate my back-country ski injuries. I’ve never had someone investigate my injuries from rock climbing. Yet there seems to be a big push in the article that 1) accident investigations are not being done and 2) if they are being done they are not being done right.

Automobile accidents are investigated because state statutes require law enforcement to investigate accidents, the damage done and the accidents occur on state land.

Automobile accidents have skid marks, car crumple zones, little black boxes, and tests that show when you hit a guard rail this way at this speed it looks like this. It snows; the wind blows and ski tracks look like every other ski track and are usually wiped out by snowboard tracks. Unless you hit a tree AND leave a mark on the tree or your body it is difficult to determine what happens.

One time in the past, I reviewed an investigation, and then did my own investigation into an accident. I talked to the injured skier and his spouse about what happened. The injured skier did not remember, and we never did figure out how the skier got hurt.

If there is a statute for someone, law enforcement to investigate accidents, then I’m sure their investigations will be better and professionally done. Right now, Ski Patrol accident investigations are done to help the ski area protect itself. The ski patrol is not tasked with any other duty by anyone.

A ski patroller’s job is to determine facts, not guess at what happened.

There is no law, no duty, and no requirement that any accident be investigated.

Accident Investigation Training

The article hits the accident investigation hard by comparing the training to that of National Park Rangers. Rangers are the law enforcement arm of the National Park Service. The job of a Ranger is basically to write tickets and arrest people for major crimes. They are law enforcement. There are statutes and regulations that empower them, command them and require them to investigation accidents and make arrests.

The article also tackles the contractual relationship between the US Forest Service and Vail, quoting from the contract. I would like to see the Denver Post contract with its writers and suppliers. I suspect that if you slam the Denver Post in an article, your career at the post is short lived.

The Bad

The ski industry is paranoid. I’ve been saying it for years. Too paranoid. However, I understand how that paranoia develops. When articles like misstate the facts and make things up, it would make you paranoid also.

As much as ski areas are paranoid the attorneys representing ski areas and the companies insuring ski areas are even more paranoid. They believe it is better not to say anything.

After this article, I understand why.

The Really Bad

The really bad is how misleading this article is. It is a veiled attempt to accomplish some goals, which are unknown at this time.

This article wasted a lot of paper and electrons attempting to make ski areas in Colorado look bad. Ski Areas in Colorado are the finest in the US. Ski Areas in Colorado are no different from any other business. The business has a duty to make a profit, and protect itself from bad publicity and lawsuits. Nothing in this article proved ski resorts did anything wrong or that any other corporation in the US does.

Read the article, the scary part is people out there believe the writer knows what they are talking about.

Disclaimer

No one paid me to write this, no one told me how to write this, no one asked me to write this. However we all have to learn that when we see or smell crap we should clean it up.

What do you think? Leave a comment.

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Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

A judge that works hard to find problems does not help.

This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.

The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.

Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:

I.                  Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;

II.               Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;

III.           Defendant created a dangerous condition by making artificial snow; and

IV.            IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.

The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.

Summary of the court’s analysis

The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:

·        Trespasser

·        Invitee

·        Business Invitee

Here, the injured skiers were either “invitees” or “business invitees.”

An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.

The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.

·        Express

·        Implied

·        Primary

·        Implied Secondary

Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.

The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.

Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.

Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…

The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.

The court found, even though the release used the term negligence, it was not enough.

In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!

In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”

The court held the word negligence in this release was too broad and covered claims that could not be released.

The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”

The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.

The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”

The court then went back to the assumption of the risk discussion.

Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.

Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.

…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.

The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”

The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.

The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.

So Now What?

The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.

1.      Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.

2.    Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.

3.    No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.

4.    If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)

5.     If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.

And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.

Plaintiff: Lesa Moffatt and Carrie Lewis

 

Defendant: Snow Creek, Inc.

 

Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence

 

Defendant Defenses: Assumption of the Risk

 

Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.

 What do you think? Leave a comment.

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Opening Day for Ski Resorts in the West have been announced

Take your gear into the shop and get it tuned up, Snow is coming (might be man-made but it is still coming!)

Opening day is always subject to weather and snow. Several resorts such as Arapahoe Basin, Loveland, Copper Mountain and Wolf Creek will open earlier if they get good snowfall. Log on to your local resorts website and sign up for announcements on when the actual opening day may be.

California

Alpine Meadows                          December 7, 2012

English: c. hassig, personal photo

Heavenly                                   November 16, 2012

Kirkwood                                    November 21, 2012

Mammoth Mountain                     November 08, 2012

Northstar                                   November 16, 2012

Squaw Valley                              November 21, 2012

Colorado

Arapahoe Basin                           Mid October 2012 – Early June, 2013

Aspen Highlands                          December 8, 2012 – April 21, 2013

Aspen Mountain                           November 22, 2012 – April 14, 2013

Beaver Creek                             November 21, 2012

Breckenridge                              November 9, 2012

Buttermilk                                  December 15, 2012 – April 7, 2013

Copper Mountain                         November 2, 2012 – April 14, 2013

East Wall at Arapahoe Basin

Crested Butte                              November 21, 2012 – April 7, 2013

Echo Mountain                            December 5, 2012 – April 7, 2013

Eldora                                        November 16, 2012 – April 14, 2013

Howelsen Hill                              December 1, 2012 – March 17, 2013

Keystone                                    November 2, 2012

Loveland                                    Mid October 2012 – Early May, 2013

Monarch Mountain                       November 21, 2012 – April 14, 2013

Powderhorn                                December 13, 2012 – March 31, 2013

Purgatory at DMR                        November 23, 2012 – March 31, 2013

Silverton Mountain                       December 1, 2012 – April 14, 2013

Ski Cooper                                 November 22 – November 25, 2012

Ski Granby Ranch                        December 12, 2012 – March 31, 2013

Snowmass                                  November 22, 2012 – April 14, 2013

Steamboat                                 November 21, 2012 – April 14, 2013

Sunlight                                     December 7, 2012 – March 31, 2013

Telluride                                     November 22, 2012 – April 7, 2013

Vail                                           November 16, 2012

Winter Park                                November 14, 2012 – April 21, 2013

Source is INCORRECT as this is A-Basin, not Lo...

Wolf Creek                                 November 2, 2012 – April 7, 2013

Utah

Alta                                           November 16, 2012

Beaver Mountain                         TBA

Brian Head                                 November 16, 2012

Brighton                                     TBA

Canyons                                     November 23, 2012

Deer Valley                                December 8, 2012

Eagle Point                                 December 21, 2012

Park City                                    November 17, 2012

Powder Mountain                         November 21, 2012

Snowbasin                                  November 25, 2012

Snowbird                                    November 17, 2012

All the lifts at aspen are chairlifts. This on...

Solitude                                     November 15, 2012

Sundance                                   December 7, 2012

Wolf Mountain                             November 23, 2012

Thanks to Get Outdoors for some of the dates on this list.

What do you think? Leave a comment.

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Colorado Sees Skier Visits Recede for 2011/12 Season

FOR IMMEDIATE RELEASE

http://www.coloradoski.com/media/press-releases

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Colorado Sees Skier Visits Recede for 2011/12 Season

Bright Spots in Colorado Ski Country USA amid Lackluster Winter

Boulder, Colo.June 6, 2012 – Colorado Ski Country USA (CSCUSA) announced today at its 49th Annual Meeting, that its 22 member resorts hosted an estimated 6.16 million skier visits during the 2011-12 ski season. This represents a decrease of 11.4 percent, or approximately 790,000 skier visits, compared to last season, which was the fourth best season on record. Compared to the five year average, CSCUSA member resort skier visits are down 11.9 percent. The overall snow related decline interrupted the recovery resorts had been building since 2008/09.

In an indication of the extreme weather impacting Colorado resorts this season, Colorado’s western slope experienced its third driest and seventh warmest winter in records going back to 1895. Precipitation on the Western Slope this winter was 43 percent below average, and down every month of the winter. In Colorado overall, March 2012 was the driest in more than 100 years, and we experienced the second warmest March on record. President and CEO of Colorado Ski Country USA Melanie Mills noted, “Fortunately, seasons such as the one just ended have proved to be historically rare and the ski industry has exhibited a remarkable ability to bounce back after poor snow years in the past.”

Mills continued, “Much of the ski industry in the US was confronted with weather challenges last year, but several of our resorts bucked the national trend and showed signs of resilience during what was clearly an uninspiring winter.”

The diversity of ski resorts in Colorado saw some areas post increases and even records in visitation. Colorado Ski Country resorts also saw strength in both domestic and international destination visitors which helped soften the economic impacts to resort operators and resort communities of the overall decline in visitation.

Colorado is favorably positioned for rare dry spells given that resorts are at higher elevations where the air is dryer and colder, therefore allowing the snow to maintain consistency. Aided by colder temperatures favorable for snowmaking, resort snowmakers and slope groomers were able to maintain a quality snow surface throughout most of the season.

Momentum going into the season was strong after seeing an uptick in visitation last year, and economic conditions generally improved during the season. Abundant amounts of snow came in the fall, allowing some resorts to open earlier than planned, but the uncharacteristic precipitation deficit brought that momentum to a standstill. Snow came in the middle of the season and several resorts broke single day snowfall totals, but perception of an underperforming winter was already set in skiers’ minds. “We’ve had dry years in the past, and we’ll have dry years again,” Mills explained. “Not every year can be a record breaking year, and with nary a snowflake in what is normally our snowiest month in Colorado, season visitation numbers are disappointing, but not unexpected.”

CSCUSA resorts upheld their dedication to providing guests with a quality product and superior service which sets Colorado apart from other ski destinations, and keeps the state’s appeal as the premiere place for winter travelers. “Our resorts have so much to offer visitors that in some cases the world class skiing is just one of a menu of activities. And for many people, the season was more about being outside and spending time with friends and family taking in the beautiful outdoors and wonderful amenities of our resorts.”

With certain assumptions in place, statewide skier visits for Colorado are estimated at 11,010,584 million. This estimation shows Colorado being down 9.8 percent, or approximately 1,195,000 visits, compared to last season. On a national level, skier visits overall are down 15.7 percent with the