It sucks when you lose a case and in a separate case, the decision in the first case you lost is used against you in the second case.

Blue Diamond MX Park was sued by a participant in a race for the injuries he received during a race. The release he signed an assumption of the risk did not stop his claim for recklessness.

Citation: Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park), 2017 Del. Super. LEXIS 615, 2017 WL 5900949

State: Delaware, Superior Court of Delaware

Plaintiff: Scott Barth

Defendant: Blue Diamond, LLC (d/b/a Blue Diamond MX Park), a Delaware corporation, The East Coast Enduro Association, Inc., a New Jersey corporation, and Delaware Enduro Riders, Inc., a Delaware corporation

Plaintiff Claims: negligent and reckless failure to properly mark the race’s course caused his injuries

Defendant Defenses: Release and Primary Assumption of the Risk

Holding: for the Plaintiff

Year: 2017

Summary

This case is another mountain-bike race case with the same defendant as an earlier case in Delaware. Delaware allows a release to be used; however, in both of these cases, the appellate court worked hard to find a way around the release.

Facts

The only facts in the case are: “The plaintiff, Scott Barth, suffered serious injuries during an off-road dirt-bike race.”

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

The court started its analysis looking at Primary Assumption of the Risk.

In Delaware, “primary assumption of the risk is implicated when the plaintiff expressly consents ‘to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.'”[7] When primary assumption of risk exists, “the defendant is relieved of legal duty to the plaintiff; and being under no legal duty, he or she cannot be charged with negligence.”

The court then looked at the release.

The plaintiff argued the release was not valid because it lacked consideration, and the release does not release the defendant from liability for recklessness.

To be enforceable under Delaware law, releases of liability “must be crystal clear and unequivocal” and “unambiguous, not unconscionable, and not against public policy.” Barth does not (and cannot) argue that the waiver form at issue does not meet this standard. In Lynam v. Blue Diamond LLC, this Court found a virtually identical release form valid.

The plaintiff argued the release was not valid based on lack of consideration. The lack of consideration was based on the fact he did not walk or ride the course in advance. Another case in Delaware had held the release was invalid because the riders were required to walk the course and never given the opportunity to do so.

In this case the riders were told, they could walk or ride the course. The plaintiff never did. Not taking advantage of the offer is not a case for claiming the release is invalid.

Barth cannot claim he was denied permission if he never asked for it. Additionally, the “failure to apprise himself of, or otherwise understand the language of a release that he is asked to sign is insufficient as a matter of law to invalidate the release.” The Court finds that Barth’s own failure to perform a permissive part of the agreement does not make the waiver invalid.

The court then switched back to the issue of recklessness and held the release could not preclude a claim for recklessness. “The Court finds that the waiver form releases the defendants from their liability for negligence, but not for recklessness.”

The court then went back to primary assumption of the risk and found that primary assumption of the risk does not bar a claim for recklessness.

Primary assumption of the risk in Delaware applies to sports-related activities that involve physical skill and pose a significant risk of injury to participants. Primary assumption of the risk in can be only with specific activities.

Delaware cases have noted that primary assumption of risk commonly applies to “sports-related activities that ‘involv[e] physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.'”

So far, Delaware has found that primary assumption of the risk applies to:

(1) being a spectator at a sporting event such as a baseball or hockey game or tennis match where projectiles may be launched into the audience; (2) participating in a contact sporting event; (3) bungee jumping or bungee bouncing; (4) operating a jet-ski, or engaging in other noncompetitive water sports such as water-skiing, tubing, or white-water rafting; (5) drag racing; and (6) skydiving.[

Relying on a California case, the court looked at the requirements for an activity. That analysis must cover the nature of the activity and the relationship between the parties.

An analysis of the nature of the activities the courts must consider:

what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport.

In reviewing the relationship of the parties, the court must look at:

the general duty of due care to avoid injury to others does not apply to coparticipants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.

In Delaware, secondary assumption of the risk was incorporated into Delaware’s contributory negligence statute and is no longer available as a complete defense. Secondary Assumption of the Risk occurs when “the plaintiffs conduct in encountering a known risk may itself be unreasonable, because the danger is out of proportion to the advantage which he is seeking to obtain.”

The court then found that primary assumption of the risk is still a valid defense to negligence. The court then found that the release the plaintiff signed was the same as primary assumption of the risk.

The Court finds that implied primary assumption of risk is a valid affirmative defense to negligence. Because Barth signed a valid release of liability for Defendants’ negligence, the remaining issue in this case is whether implied primary assumption of risk is a valid affirmative defense to allegations of recklessness as well.

As in other states, the defense provided by primary assumption of the risk is based on the duty of the defendants not to increase the harm beyond what is inherent in the sport.

Though defendants do not owe a duty to protect a plaintiff from the risks inherent in an activity to which the doctrine of implied primary assumption of risk applies, “defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.”

The issue of recklessness came back, and the court seemed to combine that issue as one where the defendant increased the risks to the plaintiff.

Here, the Court has ruled as a matter of law that a genuine issue of material fact exists as to whether Defendants recklessly marked the course with inadequate signage. The Court finds there is a genuine issue of material fact as to whether the Defendants committed reckless conduct, which increased the race’s risk of harm. Further, the Court holds that the doctrine of implied primary assumption of risk does not insulate a tortfeasor from liability for intentional or reckless conduct.

The case continued with an unknown final outcome.

So Now What?

Because of these two cases, I think first I would require all participants in the race to ride or walk the course. This would reinforce the assumption of risk argument. I would then write the release to point out the fact the rider had seen the course and had no problems with it.

The analysis of primary assumption of risk in this and many other cases creates a gap in the defenses of many activities that can only be covered by a release, even in Delaware. Primary Assumption of the risk covers the inherent risks of the activity. Defendants are liable for any increase in the risk to the plaintiffs. There is an ocean of risks that a court can find that are not inherent in the activities that are not really under the control or something the defendant can do to decrease and/or is something the defendant has not done that increased the risks.

What do you think? Leave a comment.

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Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Scott Barth, Plaintiff,

v.

Blue Diamond, LLC (d/b/a Blue Diamond MX Park), a Delaware corporation, The East Coast Enduro Association, Inc., a New Jersey corporation, and Delaware Enduro Riders, Inc., a Delaware corporation, Defendants.

C.A. No. N15C-01-197MMJ

Superior Court of Delaware

November 29, 2017

Submitted: November 17, 2017

Motions for Summary Judgment on the Issue of Primary Assumption of Risk

Batholomew J. Dalton, Esq., Laura J. Simon, Esq., Dalton & Associates, Larry E. Coben, Esq. (Argued), Gregory S. Spizer, Esq., Anapol Weiss, Attorneys for Plaintiff Scott Barth

Michael J. Logullo, Esq. (Argued), Rawle & Henderson LLP Attorney for Defendants The East Coast Enduro Association, Inc. and Delaware Enduro Riders, Inc.

George T. Lees III, Esq., Logan & Petrone, LLC Attorney for Defendant Blue Diamond, LLC

OPINION

The Honorable Mary M. Johnston.

FACTUAL AND PROCEDURAL CONTEXT

In this Opinion, the Court considers an apparent issue of first impression in Delaware. The question is whether the doctrine of primary assumption of risk applies in certain risky or dangerous sports-related activities in the absence of an express waiver of liability. This is a personal injury case. The plaintiff, Scott Barth, suffered serious injuries during an off-road dirt-bike race. Barth alleges that the race’s course was owned by Defendant Blue Diamond, LLC (“Blue Diamond”), co-sponsored by Defendant Delaware Enduro Riders (“DER”), and overseen by Defendant East Coast Enduro Association, Inc. (“ECEA”). Barth alleges that the Defendants’ negligent and reckless failure to properly mark the race’s course caused his injuries. Prior to the race, Barth signed a release of liability form.

DER and ECEA filed a Motion for Partial Summary Judgment as to Barth’s allegations of recklessness, which Blue Diamond adopted. DER and ECEA also jointly filed a Motion for Summary Judgment, while Blue Diamond separately filed its own. At the hearing on the motions, this Court denied the Motion for Partial Summary Judgment, holding that genuine issues of material fact exist regarding recklessness, particularly as to, among others things, “the adequacy of signage” and “the adequacy of warnings on the course.”[1] The Court declined to rule from the bench as to the Motions for Summary Judgment, instead instructing the parties to make additional submissions limited to the issue of the doctrine of primary assumption of risk, the central grounds for the three defendants’ motions.

DER and ECEA argue they are entitled to summary judgment for two reasons. First, Barth signed a waiver releasing them from liability. Second, Barth assumed the risk inherent in an off-road dirt-bike race. In its separate motion, Blue Diamond makes the same two arguments and adds a third-Barth was a member of the Blue Diamond Riding Club, and Blue Diamond did not owe Barth the same duty it would owe a common law business invitee, MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is granted only if the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law.[2] All facts are viewed in a light most favorable to the non-moving party.[3] Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if there is a need to clarify the application of law to the specific circumstances.[4] When the facts permit a reasonable person to draw only one inference, the question becomes one for decision as a matter of law.[5] If the non- moving party bears the burden of proof at trial, yet “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, ” then summary judgment may be granted against that party.[6]

ANALYSIS

Defendants argue that they are entitled to summary judgment because Barth signed a release of liability and, separately, because Barth assumed the risk of participating in the race. Both of these arguments are properly analyzed within the framework of the doctrine of primary assumption of risk.

In Delaware, “primary assumption of the risk is implicated when the plaintiff expressly consents ‘to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.'”[7] When primary assumption of risk exists, “the defendant is relieved of legal duty to the plaintiff; and being under no legal duty, he or she cannot be charged with negligence.”[8]

The Waiver Form Released the Defendants from Liability for Negligence, not Recklessness

Defendants argue they are entitled to summary judgment under a theory of express primary assumption of risk. Before participating in the race, Barth signed a release titled, “RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” It states that Barth:

HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE . . . racing associations, sanctioning organizations … track operators, track owners … herein referred to as “Releasees, ” FROM ALL LIABILITY TO THE UNDERSIGNED . . . FOR ANY AND ALL LOSS OR DAMAGE . . . ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

Barth asserts that the entire waiver agreement is unenforceable as an invalid contract due to lack of consideration. He further contends that even if the agreement is enforceable, it does not release Defendants from liability for recklessness.

To be enforceable under Delaware law, releases of liability “must be crystal clear and unequivocal” and “unambiguous, not unconscionable, and not against public policy.”[9] Barth does not (and cannot) argue that the waiver form at issue does not meet this standard. In Lynam v. Blue Diamond LLC, this Court found a virtually identical release form valid.[10]

Barth instead argues that the form is unenforceable due to lack of consideration. Barth bases his argument on this Court’s finding in Devecchio v. Delaware Enduro Riders, Inc.[11] In Devecchio, this Court deemed a waiver of liability unenforceable due to lack of consideration when the form stated that riders agreed to inspect the course, but the defendants admitted that, under the race’s sanctioning body’s rules, the riders were not allowed to inspect the course before the race. [12]

As in Devecchio, the release here contains an agreement that the race participants “have or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS . . ., “[13] Unlike in Devecchio, however, no sanctioning body’s rule barred Defendants from performing an inspection of the course.

Instead, the rule in this case stated: “Participants are allowed to walk or bicycle the course prior to the event-with the club’s permission.” Barth argues that, despite this distinction, Devecchio should apply because Barth was never given permission or made aware of his responsibility to inspect the course. Notably, however, Barth never asked for permission to inspect the course. That Barth hypothetically may not have received permission to perform the inspection is not dispositive. Barth cannot claim he was denied permission if he never asked for it. Additionally, the “failure to apprise himself of, or otherwise understand the language of a release that he is asked to sign is insufficient as a matter of law to invalidate the release.”[14] The Court finds that Barth’s own failure to perform a permissive part of the agreement does not make the waiver invalid.

Pursuant to Lynam, however, the form exculpates the Defendants’ negligence, not recklessness. As in Lynam, the form here provides for a release of liability caused by “THE NEGLIGENCE OF THE ‘RELEASEES’ OR OTHERWISE.” As this Court determined in Lynam, “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[15]

The Court finds that the waiver form releases the defendants from their liability for negligence, but not for recklessness.

Implied Primary Assumption of Risk Does Not Bar a Claim of Recklessness

It is undisputed that primary assumption of risk applies when the plaintiff signs a valid release of liability form.[16] But because Defendants argue that primary assumption of risk exists in addition to and independent of the waiver form, the Court must determine whether-and if so, how-to apply the defense beyond an express written agreement to waive liability.

Delaware courts have noted, paradoxically, that “depending upon the situation at hand, express consent may be manifested by circumstantial words or conduct.”[17]The illogic of “express consent” being “manifested by circumstantial words or conduct” can be resolved with the conclusion that Delaware recognizes an implied primary assumption of risk doctrine.[18]

Case law suggests that courts should find an implied primary assumption of risk only with respect to certain activities. Delaware cases have noted that primary assumption of risk commonly applies to “sports-related activities that ‘involv[e] physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.'”[19] Examples of such sports-related activities include:

(1) being a spectator at a sporting event such as a baseball or hockey game or tennis match where projectiles may be launched into the audience; (2) participating in a contact sporting event; (3) bungee jumping or bungee bouncing; (4) operating a jet-ski, or engaging in other noncompetitive water sports such as water-skiing, tubing, or white-water rafting; (5) drag racing; and (6) skydiving.[20]

The nature of the activity is pertinent to an analysis of primary assumption of risk. Otherwise, in the absence of a waiver of liability, the dangerousness of the activity would be irrelevant. The case law therefore suggests that the doctrine of primary assumption of risk applies to certain sports-related activities, even in the absence of an express waiver form. However, though Delaware seems to allow for the application of implied assumption of risk in certain sporting events, no Delaware case has provided a framework for applying the doctrine. This precise issue appears to be one of first impression.

The California case Peart v. Ferro, [21] which this Court cited in support of its observations on the prevalence of primary assumption of risk in dangerous sporting events, [22] provides a means of analysis. Under the Peart framework, courts must examine two things to determine whether an implied primary assumption of risk exists: the nature of the activity and the relationship between the parties.[23]

When examining the nature of the activity, courts consider:

what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport.[24]

In examining the relationship of the parties, the court bears in mind that “the general duty of due care to avoid injury to others does not apply to coparticipants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.”[25]

When analyzed within this framework, implied primary assumption of risk remains distinct from secondary assumption of risk. Secondary assumption of risk has been subsumed by Delaware’s contributory negligence statute.[26] It is therefore no longer available as a complete defense. Secondary assumption of risk exists when “the plaintiffs conduct in encountering a known risk may itself be unreasonable, because the danger is out of proportion to the advantage which he is seeking to obtain.”[27] In contrast, the focus for implied primary assumption of risk remains on the nature of the activity the plaintiff has consented to participate in and the actions of the defendants-not how the conduct of the plaintiff may have contributed to his injuries. Commentators also have noted that implied primary assumption of risk is distinct from secondary assumption of risk.[28]

The Court finds that implied primary assumption of risk is a valid affirmative defense to negligence. Because Barth signed a valid release of liability for Defendants’ negligence, the remaining issue in this case is whether implied primary assumption of risk is a valid affirmative defense to allegations of recklessness as well.

Though defendants do not owe a duty to protect a plaintiff from the risks inherent in an activity to which the doctrine of implied primary assumption of risk applies, “defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.”[29]

Here, the Court has ruled as a matter of law that a genuine issue of material fact exists as to whether Defendants recklessly marked the course with inadequate signage. The Court finds there is a genuine issue of material fact as to whether the Defendants committed reckless conduct which increased the race’s risk of harm.[30] Further, the Court holds that the doctrine of implied primary assumption of risk does not insulate a tortfeasor from liability for intentional or reckless conduct. The Defendants’ Motions for Summary Judgment on this issue are denied.

Barth was a Business Invitee for the Race Despite his Blue Diamond Membership

Because Barth’s primary express and implied assumption of risk bar his claims of negligence, the Court need not reach this issue. However, for the sake of completeness, the Court finds that because Barth paid a fee to participate in the race, his relationship with Blue Diamond for the purposes of that event was that of a business invitee. His membership with the Blue Diamond Riding Club had no bearing on his participation in the race.

This fact distinguishes this case from Ketler v. PFPA, LLC, [31] upon which Blue Diamond relies. There, the plaintiff was a member of a fitness center and was injured while using a rowing machine. Because the fitness center was a “private-membership based business, ” the Court found the fitness center did not owe the plaintiff the same duty it “would owe to a common law business invitee or to the public at large.”[32]

In this case, participation in the race was not restricted to members of the Blue Diamond Riding Club. The race was open to any “American Motorcyclist Association Member.” Unlike the fitness center, Blue Diamond invited non-members to the race, and therefore owed participants the duties owed to business invitees.

CONCLUSION

The doctrine of implied primary assumption of risk does not insulate tortfeasors from liability for intentional or reckless conduct.

DER and ECEA’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against these defendants are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against these defendants, Blue Diamond’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against this defendant are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against this defendant. With the dismissal of the negligence allegations, the question of Blue Diamond’s status as a business invitee is moot.

IT IS SO ORDERED.

Notes:

[1] October 3, 2017 Tr. of Motions, 71:12-16.

[2] Super. Ct. Civ. R. 56(c).

[3] Burkhart v. Davies, 602 A.2d 56, 58-59 (Del. 1991).

[4] Super. Ct. Civ. R. 56(c).

[5] Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

[6] Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

[7] Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1080 (Del. 2014) (quoting Fell v. Zimath, 575 A.2d 267, 267-68 (Del. Super. 1989)).

[8] Id.

[9] Lynam v. Blue Diamond LLC, 2016 WL 5793725, at *3 (Del. Super.).

[10] See id. The release in Lynam read:

I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s). . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . .. FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED… BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.

[11] 2004 LEXIS 444 (Del. Super.).

[12] Id.

[13] The corresponding clause in Devecchio read:

EACH OF THE UNDERSIGNED . . . acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he come in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use ….

[14] Id. This principle also dispenses with the argument that Barth did not have sufficient time to understand the release that he chose to sign.

[15] Id. (quoting W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)).

[16] See Lafate v. New Castle Cty., 1999 WL 1241074 (Del. Super.) (analyzing whether a signed waiver constitutes primary assumption of risk).

[17] Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 882 (Del. Super. 2005) (citing Croom v. Pressley, 1994 WL 466013, at *5 (Del. Super. 1994)).

[18] See id. at 882 n.30 (‘”Primary assumption of risk is akin to express or implied consent… .'” (quoting 57B Am. Jur. 2d. Negligence § 1010)). Storm also quoted the Restatement (Second) of Torts at length to explain assumption of risk generally. Id. at 881. That passage described a form of assumption of risk “closely related to” that acquired through “express consent” as one in which:

the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff.

Id.; see also McCormick v. Hoddinott, 865 A.2d 523, 529 (Del. Super. 2004) (“In the instant case there appears to be no evidence to support a claim that minor Plaintiff expressly or impliedly assumed any risk; therefore, an affirmative defense of assumption of risk based on primary assumption of risk cannot stand.”) (emphasis added).

[19] Helm, 107 A.3d at 1080 (quoting Storm, 898 A.2d at 883).

[20] Storm, 898 A.2d at 883 (citations omitted). Storm noted, however, that a “common theme” of these activities is that they frequently involve the signing of consent forms, suggesting the Court may have only meant to invoke them as another example of where express consent may apply. Id. However, a “common theme” is not a “common requirement”-spectators at sporting events do not sign releases of liability to view an event. Moreover, courts have found waiver of liability forms enforceable in contexts dissimilar to those listed above. See, e.g., Ketler v. PFPA, LLC, 2015 WL 3540187, at *2 (Del. Super. 2015) (finding a waiver form sufficient to invoke primary assumption of risk when the plaintiff snapped a cable on a rowing machine at the defendant’s gym). The Storm Court would have had no occasion to comment on the nature of the activity if it were not independently meaningful in the analysis.

[21] 13 Cal.Rptr.3d 885, 894 (Cal.App. 4 Dist. 2004).

[22] See Storm, 898 A.2d at 883 (citing Peart to define the sort of sports-related activities that typically raise the issue of primary assumption of risk).

[23] Peart, 13 Cal.Rptr.3d at 894 (citations omitted).

[24] Id.

[25] Id. at 894-95.

[26] Helm, 107 A.3d at 1080 (“[I]t is now accepted in Delaware that the concept of secondary assumption of risk is completely subsumed by the principles of comparative negligence.”).

[27] Fell v. Zimath, 575 A.2d 267, 268 (Del. Super. 1989).

[28] See Restatement (Second) of Torts § 496A (1979) (distinguishing a description of implied primary assumption of risk from a secondary assumption of risk, “in which the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence”); 57B Am. Jur. 2d Negligence § 1010 (“Primary assumption of risk is akin to express or implied consent, and relieves the defendant of any obligation to exercise care for the injured person’s protection, including situations where an injured person, having knowledge of a hazard, continued voluntarily to encounter it. Secondary assumption of risk is akin to contributory negligence . . . .”).

[29] Peart, 13 Cal.Rptr.3d at 894.

[30] This conclusion is in line with Delaware decisions that applied similar logic under framework of a different name. See Farrell v. University of Delaware, 2009 WL 3309288, at *3 (Del. Super.) (finding persuasive the New York Supreme Court’s rationale that “[a]lthough [a] rink could not be liable for harms caused by the inherent dangers of skating or by unpreventable events, the court considered assumption of risk inapplicable to injuries resulting from ‘the reckless actions of another skater which the defendant, by adequate supervision, could have prevented.'”(quoting Shorten v. City of White Plains, 637 N.Y.S.2d 791, 796 (N.Y.App.Div.1996)); Lafate v. New Castle Cty., 1999 WL 1241074, at *4 (Del. Super. 1999) (denying summary judgment, in part because “it would not be within the normal expectation of the health risk of playing basketball that a supervising employee would place a metal bar within normal head range between two basketball courts” in spite of an express release of liability).

[31] 2015 WL 3540187 (Del. Super 2015).

[32] Id. at*l.


Words and Phrases Defined in an Articles

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase

Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.

Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk
Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit

Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.

Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality

Inherently Dangerous Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Inherent Risks California This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?

Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.

New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California
Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018


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.

Copyright 2017 Recreation Law (720) 334 8529

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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