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.

 


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Skiing accident suit pleads negligent first aid based on actions of the ski patrol

Release and statute protecting pre-hospital care provider’s defeats plaintiff’s claims

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

Plaintiff: John G. Fisher

Defendant: Sierra Summit, Inc. et al.,

Plaintiff Claims: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident.

Defendant Defenses: Release, Assumption of the Risk, Health and Safety Code section 1799.102 and Health and Safety Code section 1799.108

Holding: for the Defendant Ski area

The plaintiff in this case was injured when he skied into a “hole in the snow” at the ski area. He also claimed the ski patrol “contributed to his injuries by providing first aid negligently.” The plaintiff’s injuries rendered him a quadriplegic.

The defendants filed a motion for summary judgment. The lower court throughout the plaintiff’s claim based on a release he signed when he rented his skis and that the plaintiff’s negligent first aid claim was barred by the California Good Samaritan Act.

The plaintiff pleaded:

The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident.

The second claim relating to the equipment was voluntarily dismissed by the plaintiff.

The defendants argued that the release signed by the plaintiff was a voluntary assumption of the risk. They supported this assertion by a statement that the area has been previously inspected by the defendant and did not find any conditions that needed corrections in the slope.

The defendants then placed the following information in their motion concerning the negligent first aid allegations.

Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop.

The defendant’s argument was fairly simple. The plaintiff stated he was paralyzed during the crash. Therefore, the ski patrol did not create his injuries. The defendants then argued that because the ski patrol did not receive compensation from the plaintiff, they were protected by the Good Samaritan Act.  The case does not state whether the ski patrollers that responded were volunteers or paid.

The defendant also argued that the ski patrollers had all been properly trained, and the plaintiff had presented no evidence that the ski patrol acted in bad faith or grossly negligent. In general, Good Samaritan acts do not provide protection for gross negligence or bad faith.

The plaintiff appealed.

Summary of the case

The court quickly agreed that the release stopped the plaintiff’s claims about the conditions on the slope.

The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible.

The plaintiff also argued the release violated public policy because the release was not clear on what it covered. The plaintiff argued the release only covered the rental of the equipment while the court decided the release covered his accident also.

…Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.

The main issue and one of interest in this case is the court’s analysis of the negligent first aid claim.

Plaintiff argued that the release did not apply to the negligent first aid allegations. The plaintiff argued:

… because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter.

The court decided not to debate the arguments made by the parties at the trial court level that the ski patrollers were protected by the Good Samaritan law because of the compensation issue. The court decided the ski patrollers were immune under another California law Health and Safety Code §1799.108 “which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith.”

The statute states:

“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”

The court first described the burden the plaintiff had to meet to prove his case.

He only claims there is a triable issue about whether they were grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith.

The court then looked at the allegations made by the plaintiff failed to meet the burden.

Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of persuasion that Fisher cannot prove an essential element of this cause of action.

Since the plaintiff did not allege that the action of the patrollers was grossly negligent or done in bad faith, nor did he plead any allegations that could be interpreted as such, the court held the patrollers were immune from litigation under the statute.

So Now What?

One of the major issues for the ski industry that this court could find a way around, was that releases used by the rental shops only cover rental of the equipment under most state laws. It does not take much to have your attorney write your equipment rental release to also cover ski school classes, or season passes, and any other activity at the resort.

If third party ski rental shops are also selling your lift tickets as part of the lift ticket package pay to have the third party rental shops release cover your ski area also.

Physicians have argued for a decade that they should be protected by a Good Samaritan act because they were not paid by the patient, but paid by the hospital were the patient was at the time of the alleged injury. This argument has failed repeatedly for physicians. The court in skipping this argument in this case probably saved itself from the numerous court cases with this type of holding.

The court finding another statute to protect the patrollers was valuable. The statute is rare and not found in many other states. However, it could be applicable in all types of outdoor recreation businesses and programs in providing liability protection in California.

The first step in meeting the protections provided by Health and Safety Code §1799.108 would be to find the list of first aid “certificate[s] issued pursuant to this division” and making sure your guides, instructors and patrollers all have the required first aid training and certificate. I would collect the certificates each year and keep them copies in a file to make sure they were always easily found. After that the application of the law should be fairly consistent based on this case.

However, the court stated the law had been changed since the accident and used the older version of the law, as appropriate. The new law states:

1799.108.  Emergency field care treatment by certificate holder

Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.

California Health and Safety Code §1799.102 states:

§ 1799.102.  Emergency care at scene of emergency; Liability

(a) No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision applies only to the medical, law enforcement, and emergency personnel specified in this chapter.

(b)

(1) It is the intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.

(2) Except for those persons specified in subdivision (a), no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision shall not be construed to alter existing protections from liability for licensed medical or other personnel specified in subdivision (a) or any other law.

(c) Nothing in this section shall be construed to change any existing legal duties or obligations, nor does anything in this section in any way affect the provisions in Section 1714.5 of the Civil Code, as proposed to be amended by Senate Bill 39 of the 2009-10 Regular Session of the Legislature.

(d) The amendments to this section made by the act adding subdivisions (b) and (c) shall apply exclusively to any legal action filed on or after the effective date of that act.

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Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

John G. Fisher, Plaintiff and Appellant, v. Sierra Summit, Inc. et al., Defendants and Respondents.

F058735

COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT

2011 Cal. App. Unpub. LEXIS 185

January 11, 2011, 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.

PRIOR HISTORY: [*1]

APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 08CECG00198. Donald S. Black, Judge.

CORE TERMS: ski, patrollers, summary judgment, skiing, user, hole, rented, slope, emergency, snow-sliding, negligently, ambiguous, patrol, bad faith, bleachers, triable, skied, scene, crash, skier, snow, grossly negligent, triable issue, gross negligence, public policy, groomed, manufacturers, distributors, customer, arms

COUNSEL: Lang, Richert & Patch, Robert L. Patch II, David T. Richards, and Ana de Alba for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter, and Kathleen M. Bragg for Defendants and Respondents.

JUDGES: Wiseman, Acting P.J.; Kane, J., Poochigian, J. concurred.

OPINION BY: Wiseman

OPINION

Plaintiff John G. Fisher was severely injured when he crashed while skiing at the Sierra Summit ski resort. He sued defendants Sierra Summit, Inc., and Snow Summit Ski Corporation, contending he crashed because he skied into a hole in the snow that was present because of their negligence. He also claimed that ski patrol personnel at Sierra Summit contributed to his injuries by providing first aid negligently.

The trial court granted defendants’ motion for summary judgment. The court ruled that Fisher’s claim that he was injured by a dangerous condition negligently allowed to exist on the property was barred by a release he signed when he rented his skis, a release in which he expressly assumed the risk of being injured while skiing. It ruled that his claim of negligent first [*2] aid was barred by Health and Safety Code section 1799.102, 1 a Good Samaritan statute that immunizes from tort liability those who, at the scene of an emergency, render emergency care in good faith and not for compensation.

1 Subsequent statutory references are to the Health and Safety Code unless otherwise noted.

We affirm the judgment. We agree with the trial court’s conclusion that the risks Fisher expressly assumed when he signed the release included the risk of the accident he suffered. On the ski patrol issue, however, we will not reach the issue of whether section 1799.102 applies. This would require us to decide whether “for compensation” in that statute means for any compensation or for compensation specifically by the injured person–a question which, under the circumstances, it is unnecessary to decide. Instead, we hold that the claim of negligent first aid by the ski patrollers is barred by section 1799.108, which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith. There is no triable issue of fact regarding whether the ski patrollers were grossly [*3] negligent or acted in bad faith, so summary judgment on this claim properly was granted.

FACTUAL AND PROCEDURAL HISTORIES

Fisher filed his complaint on January 17, 2008. It alleged that on January 20, 2007, “while skiing at a safe speed and in-bounds [on] a properly marked ski slope, [Fisher] encountered a large hole in the snow which was not naturally occurring or obvious.” He crashed. When ski patrol personnel came to the scene, they allegedly failed to provide proper assistance. The accident resulted in Fisher’s quadriplegia. The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident. Fisher voluntarily dismissed the second cause of action, pertaining to equipment, on March 19, 2009.

Defendants filed a motion for summary judgment. With it, they submitted a copy of a release Fisher signed when he rented his skis at the ski shop at Sierra Summit on the day of the accident. The document, a single sheet of 8-by-14-inch paper, printed in four columns [*4] going down the narrow axis of the paper, sets out two distinct agreements, with two separate places for the customer’s signature. The first agreement, occupying the first column, pertains exclusively to equipment. It reads:

“PLEASE READ CAREFULLY BEFORE SIGNING EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY DO NOT SIGN UNTIL YOU HAVE RECEIVED YOUR EQUIPMENT

“I understand how this ski (snowboard, skiboard) boot-binding system works and I have been fully instructed in its proper use. Any questions I have had about this equipment have been satisfactorily answered. I agree that the binding release/retention setting numbers appearing in the visual indicator windows on the binding correspond to those recorded on this form (Alpine only).

“I agree to have user check this equipment before each use, including the binding anti-friction device (Alpine only), and that I will not use this equipment or if I am not the user permit the user to use this equipment if any parts are worn, damaged, or missing. If I am not the user I will provide all of this information to the user.

“I understand that I may return at any time to have this equipment examined, replaced or repaired.

“X

“USER’S SIGNATURE

DATE”

Fisher’s [*5] signature appears on the line. The second column is filled with a box for the customer’s name, address, shoe size, and other information necessary for providing equipment. Fisher filled out this box.

The second agreement occupies the third and fourth columns. It refers to equipment as well, but also contains a more general release of liability. It reads:

“RELEASE OF LIABILITY “1) READ CONTRACT COMPLETELY, SIGN/INITIAL “2) PROCEED TO CASHIER, HAVE DRIVER’S LICENSE/I.D. READY.

“1. I will read the EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY of this agreement, and will be responsible for obtaining all of the information required by that section and will provide a copy of same to the user of this agreement. I will make no misrepresentations to the ski shop regarding the user’s height, weight, and age or skier type.

“2. I understand that ALL FORMS OF SNOW-SLIDING, including skiing and snowboarding, are HAZARDOUS activities. I also understand that all forms of snow-sliding have inherent and other RISKS OF INJURY, INCLUDING DEATH, that reasonable care, caution, instruction and expertise cannot eliminate. I further understand that injuries are common and ordinary occurrences during these [*6] activities. I hereby agree to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any part of the user’s body while engaging in any form of snow-sliding.

“(Please Initial )

“3. I understand that the Alpine ski equipment being furnished by Snow Summit, Inc., and/or by Sierra Summit, Inc., and/or by Bear Mountain, Inc., any of their respective agents, employees, or affiliated corporations (hereinafter collectively referred to as “Summit”), forms all or part of a ski-boot-binding system which will NOT RELEASE OR RETAIN AT ALL TIMES OR UNDER ALL CIRCUMSTANCES. I further agree and understand that any ski-boot-binding system does NOT ELIMINATE THE RISK of injuries to any part of the user’s body. If SkiBoard or Snowboard or any other equipment is being furnished, I understand that these systems are designed to NOT RELEASE and do NOT PROTECT against injuries to any part of this user’s body.

“(Please Initial )

“4. I hereby FOREVER RELEASE SUMMIT, as well as the equipment manufacturers and distributors from, and agree to indemnify them and hold them harmless for, any and all responsibility or legal liability for any injuries or damages to any user of any equipment [*7] rented with this form, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT. I agree NOT to make a claim against or sue Summit, or any of the equipment manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment. I accept full responsibility for any and all such injuries and damages.

“(Please Initial )

“5. Summit provides NO WARRANTIES, express or implied. This equipment is accepted “AS IS.” I will accept full responsibility for the care of the listed equipment. I agree to return all rented equipment by the agreed date to avoid additional charges.

“(Please Initial )

“6. I have read this agreement and understand its terms. I am aware that this is a binding contract which provides a comprehensive release of liability. However, it is not intended to assert any claims or defenses that are prohibited by law. I agree that the foregoing agreement is intended to be as broad and inclusive as is permitted by law and that if any portion or paragraph is held invalid, the balance shall continue in full legal force and effect.

“X

“USER’S SIGNATURE

DATE”

Fisher [*8] signed at the bottom and initialed in each place indicated.

Defendants argued that this release constituted Fisher’s express assumption of the risk of having the accident he had and that it formed the basis of a complete defense to all Fisher’s claims. Defendants argued that, apart from the release, all Fisher’s claims were also barred by the common-law doctrine of primary assumption of the risk, set out in Knight v. Jewett (1992) 3 Cal.4th 296 and its progeny. They further contended that Fisher could not produce evidence to support his claims that they were negligent in maintaining the property or providing first aid.

To support the contention that Fisher could not prove negligent maintenance of the property, defendants produced evidence that their personnel had inspected the area where Fisher crashed a number of times the day before and the day of the accident and did not find any condition requiring marking or correction. Defendants also pointed to Fisher’s deposition testimony, implying that he was not on a groomed ski run when he crashed: “And when I skied from one run to the next, I encountered a hole that seemed to be between the two runs.”

To support the contention that Fisher [*9] could not prove negligent first aid, defendants produced evidence that Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop. Defendants argued that these facts showed Fisher had already become paralyzed in the crash and that his injuries could not have been caused by anything done by the ski patrollers. Defendants also argued that there was no evidence of any act or omission by the ski patrollers that would have caused additional injury to Fisher.

On the claim of negligent first aid alone, defendants also relied on section 1799.102. At the time, 2 that section provided:

“No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.”

Defendants argued that their ski patrollers were immunized by this statute because they did not receive any compensation [*10] from Fisher. They acknowledged that no published California case has interpreted the phrase “not for compensation” in this statute; they relied on out-of-state cases applying other states’ similar statutes.

2 Section 1799.102 was amended effective August 6, 2009. (Stats. 2009, ch. 77, § 1.) The former version applies to this case.

Defendants additionally relied on section 1799.108, which provides:

“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”

Defendants presented evidence that all the ski patrollers involved had the certification required by this section. They argued that Fisher could present no evidence that the patrollers who assisted him acted in bad faith or with gross negligence.

In opposing the motion for summary judgment, Fisher argued that the release did not apply to his accident because it only released defendants’ liability for injuries arising from problems with the rented [*11] equipment. The court could not grant summary judgment based on the release, he argued, because this was a reasonable interpretation of an ambiguous contract. It was patently ambiguous, he argued, because a reasonable person could interpret its terms to mean that liability was released only for injuries related to equipment failures. It was latently ambiguous because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter. Even if the release did relate to liability for accidents resulting from the condition of the slopes, Fisher argued, it would not bar an action for a dangerous condition that existed because of defendants’ negligence. In addition, even if the release covered defendants’ negligence, it did not cover the particular kind of negligence that caused Fisher’s injuries because releasing liability for injuries caused by falling in an artificially created hole was not reasonably related to the parties’ purpose in entering into the release.

Responding to defendants’ argument that there was no evidence to support his claim that [*12] the accident resulted from their negligent maintenance of the slopes, Fisher submitted evidence intended to show that the hole was on a groomed slope, meant to be skied on by defendants’ patrons, and was not naturally occurring. He cited his own deposition in which he testified that he did not ski on any ungroomed areas. He further testified that there was a wall of ice on the far side of the hole as he skied into it and that the wall of ice “seemed to have a groomed edge on the top of it ….” Fisher also submitted a declaration asserting that the hole was “manmade.” The declaration does not, however, explain how Fisher knew it was manmade. In addition, Fisher pointed to deposition testimony by Sierra Summit personnel acknowledging that holes or walls in the snow can inadvertently be created by snow grooming equipment.

In response to defendants’ claim that Fisher could not produce evidence of negligent first aid, Fisher argued that if he could sit up and wave his arms at the time when the ski patrollers found him, that could mean the patrollers added to his injuries through their first aid. He also claimed the defense was not entitled to summary judgment on the claim unless it offered [*13] expert medical testimony that the ski patrollers acted reasonably.

Fisher argued that the doctrine of primary assumption of the risk does not apply to this case. He said the doctrine applies only to risks inherent in the risky activity, and the risk of an accident like his is not inherent in skiing if the hole was artificial and was present because of defendants’ negligence.

On the ski patrol claim, Fisher contended that section 1799.102 was inapplicable because the ski patrollers were compensated by defendants. He argued that the statute requires simply that aid be given “not for compensation”; that defendants’ view would read words into the statute that are not there; and that this would be improper, regardless of what out-of-state cases interpreting other statutes might say. Fisher also argued that summary judgment could not be granted based on section 1799.108 because of the facts that he was combative and tried to sit up while he was being aided, combined with defendants’ failure to produce an expert opinion. Fisher did not explicitly say how these points helped him, but presumably he meant they showed there was a triable issue of whether the ski patrollers were grossly negligent. [*14] Fisher also did not explicitly say why his ski patrol claim fell outside the release or outside the doctrine of primary assumption of the risk, but his arguments on those topics implied that neither defense would apply because the risk of negligent first aid was not related to equipment failure and not an inherent risk of skiing.

The trial court granted the motion for summary judgment, basing its ruling on the release and on section 1799.102. It held that the release barred Fisher’s claim that his crash was caused by a hole negligently allowed to exist on a slope because the release “clearly and unambiguously releases defendant from liability for injuries or damages caused by defendant’s negligence and which occur to any user of rented equipment, a status which plaintiff indisputably occupied.” It stressed that the release “clearly expresses plaintiff’s agreement not to sue defendant and to accept full responsibility for all injuries and damages relating to or arising from … ‘any snow-sliding activities ….'” The court rejected Fisher’s contention that the release was ambiguous: “[B]y its express terms [it] is not limited to damages or injuries caused by the equipment, but extends to [*15] any claims relating to or arising from snow-sliding activities.” In applying section 1799.102 to the negligent first-aid claim, the court acknowledged that no California cases have interpreted the phrase “not for compensation.” It agreed with defendants’ view that the phrase means not for compensation by the injured party.

DISCUSSION

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) We view the facts in the light most favorable to the nonmoving party and assume [*16] that, for purposes of our analysis, his version of all disputed facts is correct. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.) A moving defendant can establish its entitlement to summary judgment by either (1) demonstrating that an essential element of the plaintiff’s case cannot be established, or (2) establishing a complete defense. (Code Civ. Proc., § 437c, subd. (o).)

I. Dangerous condition of property claim

Fisher contends that the trial court erred in applying the release of liability he signed to bar his claim that defendants caused his injuries by negligently allowing the existence of the hole into which he skied. We disagree.

A contract in which a party expressly assumes a risk of injury is, if applicable, a complete bar to a negligence action. (Knight v. Jewett, supra, 3 Cal.4th 296, 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372.)

“In order for a release of liability to be held enforceable against a plaintiff, it ‘must be clear, unambiguous and explicit in expressing the intent of the parties’ [citation]; the act of negligence that results in injury to the releasee must be reasonably related to the object [*17] or purpose for which the release is given [citation]; and the release cannot contravene public policy [citation]. A release need not be perfect to be enforceable. [Citation.]” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-1305 (Sweat).)

We address each requirement in turn.

A. The release is clear, unambiguous, and explicit in expressing the intent of the parties

We agree with the trial court’s conclusion that the release Fisher signed applied unambiguously to injuries arising from skiing accidents, including the injuries Fisher suffered, even if caused by defendants’ negligence. The release stated that Fisher “agree[d] to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any party of the user’s body while engaging in any form of snow-sliding.” He agreed to “FOREVER RELEASE SUMMIT,” as well as the equipment manufacturers and distributors, from “any and all responsibility or legal liability for any injuries or damages to any user of any equipment rented with this forms, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT.” He also agreed “NOT to make a claim against or sue Summit, or any of the equipment [*18] manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment.” He accepted “full responsibility for any and all such injuries and damages” and stated that he was “aware that this is a binding contract which provides a comprehensive release of liability” and “is intended to be as broad and inclusive as is permitted by law ….” This language applies to personal injuries sustained by a skier who crashes while skiing at the resort, even if the crash is caused by a defect in the snow or ground surface caused by defendants’ negligent maintenance of the property. Fisher’s argument that the agreement is patently ambiguous because it contains references to the rented equipment and the equipment manufacturers and distributors is not persuasive. The agreement plainly states that Fisher releases the ski resort and the equipment manufacturers and distributors from liability for injuries caused by skiing as well as those caused by equipment problems.

The release also is not latently ambiguous. The parties disagree about whether extrinsic evidence should be considered to determine [*19] whether the release is latently ambiguous, but we need not resolve that debate because no latent ambiguity appears even if the extrinsic evidence Fisher relies on is considered. Fisher relies on evidence that the release is given to customers when they rent equipment; that neither it nor any other release is obtained from customers who ski without renting equipment; and that because of these circumstances he assumed, without reading the release, that it applied only to injuries caused by problems with the rented equipment. None of this detracts from the clarity of the release’s language or renders reasonable an interpretation according to which the release applies only to injuries arising from the rented equipment.

B. The alleged negligence that resulted in the injury was reasonably related to the purpose for which the release was given

The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938 [if releases of liability in cases [*20] arising from hazardous recreational pursuits are not enforced, “many popular and lawful recreational activities are destined for extinction”].) The alleged negligence in maintenance of the property that Fisher says caused his injuries has a reasonable relationship with this purpose.

Fisher argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the release only applies to accidents caused by equipment problems and was only given to customers renting equipment. We have already explained why the release cannot reasonably be understood as applying only to accidents caused by equipment problems. The fact that the resort gave the release only to skiers who rented equipment does not show that its purpose is limited to accidents arising from equipment, for its plain meaning is to the contrary. It may be that the release fails fully to achieve its economic purpose if the resort does not obtain it from all skiers, but that does not prove it has a different purpose.

Fisher also argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the risk of skiing into an artificially created hole [*21] in a groomed part of a slope is not a reasonably foreseeable risk, and there is at least a triable question of whether the hole he skied into was artificially created and in a groomed part of a slope. He cites Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490-1491 (Bennett), which reversed summary judgment against the signer of an agreement releasing the defendants from liability for injuries, including injuries caused by the defendants’ negligence, sustained by the signer in a bicycle race. The court held that there was a triable question of whether the accident–a collision with a car on a race course that was closed to traffic–was reasonably foreseeable.

The Bennett court did not cite any authority directly supporting the proposition that an agreement releasing liability for negligence applies only to harms arising from reasonably foreseeable negligence. It relied instead on quotations from the Restatement Second of Torts and the treatise of Prosser and Keeton to the effect that releases apply only to harm-causing conduct of the defendant that was within the contemplation of the parties. (Bennett, supra, 193 Cal.App.3d at p. 1490.) It is not by any means [*22] clear to us that, as a general proposition, parties who enter into a release of liability for negligent conduct related to a hazardous recreational activity intend the release to apply only to negligent conduct that the parties can reasonably be expected to think of in advance. This is especially implausible where, as here, the release explicitly applies to all skiing-related injuries even if caused by defendants’ negligence. To the extent that Bennett is in conflict with these views, we decline to follow it. Further, even if we were applying the holding of Bennett, we would not conclude that it stands in the way of summary judgment here. Even assuming there are triable questions of whether the hole was artificial and whether it was on a groomed portion of the slope, Fisher has suggested no persuasive reasons why a crash caused by negligently maintained slope conditions would not be reasonably foreseeable. What sort of negligence would be more likely to cause a skiing accident than negligence in failing to keep the slopes in good condition?

Fisher relies also on Sweat, supra, 117 Cal.App.4th 1301, in which we held that a release did not apply because the defendant’s negligence was not [*23] reasonably related to the purpose of the release. In that case, the plaintiff attended an auto race where, if an audience member sat in the bleachers in the pit area, the track owners required him or her to sign a release of liability for any claim of injury arising while the audience member was in that area, even if caused by the owners’ negligence. The plaintiff signed the release, sat in the pit area bleachers, and was injured when the bleachers collapsed. After a bench trial, the court found this release was a complete defense. We reversed (id. at p. 1303), concluding that the release was ambiguous; that extrinsic evidence was necessary to resolve the ambiguity; and that, in light of that evidence, the release’s only purpose was to allow audience members to observe the race from the pit area. The collapse of the bleachers had no causal relation to dangers arising from the race, so the release was not applicable to liability for injuries resulting from that collapse. (Id. at pp. 1305-1308.)

Sweat is distinguishable from this case. Here we have an unambiguous release barring negligence liability for any injury resulting from skiing, among other activities. A skiing accident caused [*24] by a negligently maintained ski trail falls within the scope of the release.

The final paragraph of our analysis in Sweat is instructive:

“Here, appellant’s express assumption of risk would cover all hazards related to the automobile race and its observation. As appellant points out, those might include a tire separating from a car and hitting someone, a car leaving the track and striking a spectator, or someone being burned by a crash. This is not an exhaustive list. One can even anticipate the flying tire, the errantly driven car, or the flames from the crash causing the collapse of bleachers. The race activity might lead to less dramatic accidents: a person slipping on automotive grease in the pit area, or even a race observer slipping on spilled soda while keenly watching the race as he or she steps through the bleachers. The release agreement here does not, however, contractually charge appellant with assuming the risk of injury from defectively constructed or maintained bleachers, should a full trial on the merits establish such facts.” (Sweat, supra, 117 Cal.App.4th at p. 1308.)

The accident in Sweat fell outside the release because it was causally unrelated to the race, to allow [*25] the observation of which was the purpose of the release. An accident unrelated to skiing, such as a fall inside a ski lodge caused by a defect in the floor unreasonably allowed to be present, would be comparable to the accident in Sweat and would fall outside the release, for it would be causally unrelated to skiing or any of the other activities mentioned in the release. Here, however, if the skiing accident were caused by defendant’s negligent maintenance of the slopes, as Fisher claims, it would be comparable to an accident caused by something negligently allowed to remain on the floor in the race-observation area–grease or soda–by the track owners in Sweat. That cause is reasonably related to skiing and consequently to the purpose of the release.

C. The release is not against public policy

Fisher argues that there is a public policy of “fundamental fairness,” and that the release violates this policy because it “appears, on its face, to only relate to the rental equipment ….” As we have said, this is not the case. Fisher also repeats here the argument that, because the release was obtained only from skiers who rented equipment, it is only applicable to accidents caused by the equipment. [*26] Again, this circumstance does not negate the explicit statements in the agreement releasing defendants from liability for any injuries sustained while the customer engages in snow-sliding activities.

Fisher also argues that the release violates public policy because it allows defendants to be negligent in maintaining their ski slopes without incurring liability. As we have seen, however, the law allows releases of liability for injuries caused by negligence during hazardous recreational activities, and does so in order to prevent exposure to liability from making those activities economically infeasible. Finally, Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.

The parties have extensively briefed the subject of primary assumption of the risk, but our holding on the release makes it unnecessary for us to address that issue.

II. Negligent first-aid claim

Fisher argues that the [*27] trial court erred when it held that section 1799.102 barred his claim of negligent first aid by the ski patrollers. He says summary judgment could not properly be granted on this basis because there was evidence that the ski patrollers received compensation for performing their duties. We need not break ground in this unsettled area because an alternative basis for the judgment–a basis raised by defendants in the trial court–is available. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [appellate court may affirm summary judgment on any correct legal theory raised by parties in trial court].)

This basis is section 1799.108, which immunizes certified first-aid providers except in cases of gross negligence or actions not taken in good faith. In support of their motion, defendants submitted evidence that all the ski patrollers who aided Fisher were properly certified. They also submitted evidence of the aid the patrollers gave, arguing that nothing in their actions or the surrounding circumstances gave any support to a claim of gross negligence or bad faith. This evidence included Fisher’s own statement in his deposition that the only thing he remembered about [*28] the people who aided him was that they insisted he lie still. It also included declarations by three patrollers who assisted Fisher: Mary Warner, Russ Bassett, and Richard Bailey. According to these declarations, a guest was helping Fisher when the ski patrollers first arrived. The guest said he was an EMT. The patrollers brought a toboggan, a backboard, a cervical collar, splints, and oxygen. Fisher was on the ground and the guest was correctly supporting his cervical spine, according to one of the patrollers. Fisher repeatedly yelled that his arms, legs, and back were broken and that he was going into shock. When one of the patrollers pinched Fisher’s leg and determined that he had no feeling in it, Fisher said he was paralyzed and became agitated. He swung his arms and tried to sit up until the patrollers calmed him and persuaded him to be still. The patrollers used the toboggan and backboard to bring Fisher to the first-aid patrol room, where his care was taken over by paramedics. The paramedics decided to transport Fisher to the hospital by ambulance.

In his opposition to the motion, Fisher presented no additional evidence. He only pointed to the evidence that he waved his arms [*29] and tried to sit up. Presumably his point was that, in the end, his injuries were too severe to allow this and therefore the patrollers might have made the injuries worse. He did not say so explicitly, however, and presented no supporting evidence. He also pointed out that defendants did not present an expert’s opinion that the patrollers did not act negligently.

A defendant moving for summary judgment has, at all stages, the burden of persuading the court that the plaintiff cannot establish an essential element of his cause of action. The defendant need not conclusively negate an element of the cause of action, however. Rather, the defendant must first bear a burden of producing evidence making a prima facie showing of the nonexistence of a triable issue of material fact. The burden of production then shifts to the nonmoving plaintiff, who must produce evidence making a prima facie showing that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851, 853-855.)

In this case, Fisher does not claim there is a triable issue about whether the ski patrollers were certified. 3 He only claims there is a triable issue about whether they were [*30] grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith. As described in the ski patrollers’ declarations, the first aid they gave included nothing upon which a claim of gross negligence or bad faith could be founded. The fact that Fisher sat up and waved his arms, or attempted to do so, does not show that the ski patrollers made his injuries worse. There was no evidence that the sitting and waving or attempted sitting and waving were actions that later became impossible for Fisher, and no evidence that even if they did, this was because of anything done or omitted by the ski patrollers. Contrary to Fisher’s argument, there is no authority for the view that summary judgment can be obtained by a defendant on a claim of grossly negligent first aid only if the defendant presents an expert opinion that there was no gross negligence. Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of [*31] persuasion that Fisher cannot prove an essential element of this cause of action.

3 At oral argument, Fisher claimed, for the first time, that “some” of the ski patrollers were not certified. This claim does not appear in his discussion of this issue in his opening brief or his reply brief. It did not appear in his memorandum of points and authorities in opposition to the motion for summary judgment or the errata he filed to that memorandum. In their statement of undisputed facts, defendants stated that responders Russ Bassett, Richard Bailey, Marc Smith, Tim Crosby, and Mary Warner were qualified in first aid through, or were first-aid instructors for, the American Red Cross or the National Ski Patrol. Fisher agreed that these facts were undisputed. He did not argue that these credentials did not amount to certification within the meaning of section 1799.108. His separate statement of disputed facts did not state any contrary evidence or assert that any uncertified patrollers administered first aid. A factually unsupported claim made for the first time at oral argument on appeal is not grounds for reversing summary judgment.

Defendants argue that the release, the doctrine of primary [*32] assumption of the risk, and section 1799.102 all also support the court’s decision. We need not address these additional theories. 4

4 In their appellate brief, defendants assert that the trial court “implicitly determined the Release did not apply to the actions of the ski patrol” because it granted summary judgment on that claim on a different basis. This is not correct. A court does not implicitly reject a theory merely by basing a decision on another theory. “[A]n opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)

DISPOSITION

The judgment is affirmed. Defendants are awarded costs on appeal.

Wiseman, Acting P.J.

WE CONCUR:

Kane, J.

Poochigian, J.

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There is no duty on the part of the ski patrol to play cop on the slopes

Skiers and Boarders who do not voluntarily provide their ID to the ski area cannot be “caught” by the patrol and there is no liability on the resort for not doing so.

O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

Plaintiff: Mary Ryan O’Connell

Defendant: Killington, Ltd.

Plaintiff Claims: (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff’s injuries were the consequence of her assumption of the inherent risks of skiing.

Defendant Defenses: No Duty

Holding: for the defendant

In this case the plaintiff was stopped on the slope of the defendant ski area. While standing she was struck by another skier. The ski patrol arrived on scene along with the plaintiff’s sister. The plaintiff asked the ski patrol to get the name of the skier that hit her. The plaintiff’s sister spoke to the skier that collided with the plaintiff and asked him to go to the patrol station and identify himself.

The skier never did.

The plaintiff sued the ski area alleging the ski area:

(1)             failed to warn of the icy conditions on the trail,

(2)            failed to close the trail because of its dangerous condition and

(3)            failed to obtain the identity of the skier who had collided with plaintiff.

The basis for the failure to obtain the identity of the skier claim was based upon the defendant’s employee manual.

In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant’s employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant’s negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.

At the end of the trial the judge submitted the failure to warn and failure to identify claims to the jury.

The jury found for the plaintiff on both claims and awarded damages of $71,108.69.

The defendant appealed based on the following issues.

(1)             whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided with her;

(2)            whether plaintiff’s failure-to-identify claim is precluded by the jury’s finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and

(3)            whether certain instructions to the jury were proper.

Summary of the case

After the accident and before the appeal the Vermont Legislature passed a statute stating that a ski area was not legally responsible for obtaining the name of any person involved in an accident.

12 V.S.A. § 1038(b), effective June 21, 1994, provides, in part:

(b) Collision at a ski area.

(1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.

(2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.

Because the statute was passed after the incident in this case, it did not apply to this case.

The Court looked at whether there was a common law (prior to statute) duty to on the ski area to do more than ask for the information. To do that the court reviewed how a duty is created in Vermont. “The imposition of a duty is “‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.”

These factors may include the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and plaintiff’s injury, the moral blame attached to defendant’s conduct, the policy of preventing future harm, the burden to the defendant, the con-sequences to the community of finding a duty, and the availability and cost of insurance.

The court analysis separated the separated physical harm, an injury, from economic harm, failure to find someone who may owe another money.

Thus, a possessor of land open to the general public has a duty to aid and protect a member of the public coming on the land against unreasonable risk of “physical harm” only. Physical harm does not include economic loss.

The court concluded: “Our review of the decisions from other jurisdictions indicates that, absent a special relationship or undertaking, there is no duty to protect another’s litigation interest.”

The court then looked at the duties of the ski patrol, which do not include the power to detain or apprehend. “Moreover, even if the ski area had a duty to identify, it would have only a limited ability to enforce that duty against an uncooperative skier.”

The main concern of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care. We are reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier.

The plaintiff argued that the statements in the employee manual that establish procedures on how to deal with ski accident create a duty.

These procedures include completing an accident reporting form, obtaining names and addresses of witnesses to the accident, obtaining witness statements and recording observations at the accident scene. Plaintiff argues that these provisions amount to the voluntary assumption of a duty to investigate accidents, particularly skier collisions.

However the court did not agree with this argument.

…we do not believe that the manual provisions show the assumption of this responsibility. The manual makes clear that the investigatory responsibilities placed on employees are for the protection of defendant with respect to suits against it.

So Now What?

Ski Patrollers are the most over worked and underpaid (or volunteer) people on the slope. The last thing you want is to do is to turn the patrol from care givers to cops.

Make sure that no one interprets anything you have or do as an obligation or duty. No employee should be identified, unless they have a badge, to identify people on the slopes causing harm. Your marketing material should explain the law, but make sure you do not imply you can or will do anything else. Make sure your employee manuals and training do nothing more than explain the law. You can ask for identification. You can remove lift tickets and season passes. You cannot do anything more than take back your property. If you feel the need to do more, than call for lawful assistance.

No one on the slopes has the authority to detain, apprehend or arrest another person, unless they have a badge.

Don’t turn the people on the slope who are loved by all, ski patrollers, into people on the slope skiers and boarders should be wary of.

What do you think? Leave a comment.

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O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

Mary Ryan O’Connell v. Killington, Ltd.

No. 93-394

SUPREME COURT OF VERMONT

164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

August 4, 1995, Filed

HEADNOTES

1. Torts – Generally – Existence of Duty

A landowner’s duty does not extend to assisting the prosecution of claims arising from torts of third parties also using the land.

2. Torts – Generally – Existence of Duty

The main concern of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care; court was reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier for purposes of an injured skier’s litigation.

3. Torts – Generally – Existence of Duty

The Legislature has provided, as of 1994, that a skier involved in a collision has the responsibility to provide his or her name and local and permanent address to the other parties to the collision, but has also made clear that the ski area has no duty to obtain that identification. 12 V.S.A. 1038(b).

4. Torts – Generally – Existence of Duty

Although ski area could voluntarily assume the duty to investigate accidents on behalf of injured skiers, ski area’s employee manual provisions did not show the assumption of this responsibility because the manual made clear that the investigatory responsibilities placed on employees were for the protection of the ski area with respect to suits against it – there was nothing to indicate that they were assumed as duties to third parties.

5. Torts – Generally – Existence of Duty

To the extent ski area’s policy intended that its employees identify colliding skiers to aid in litigation between them, the rationale of Larocque v. State Farm Insurance Co., 163 Vt. 617, 618, 660 A.2d 286, 288 (1995), that a policy directing employees to investigate claims did not create a duty to a particular claimant, was controlling and prevented use of defendant’s manual to create a negligence duty.

6. Torts – Generally – Existence of Duty

In personal injury case against ski area, although the proper meaning of the employee manual may have been a question of fact for the jury, if a duty were present under some construction of the manual, the threshold question of whether the manual, however construed, could give rise to a duty was for the court.

COUNSEL: Thomas M. French, Brattleboro, for plaintiff-appellee.

Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellant.

JUDGES: PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

OPINION BY: JOHN A. DOOLEY

OPINION

[*74] [**41] DOOLEY, J. Defendant ski area, Killington, Ltd., appeals from a negligence judgment against it based on defendant’s failure to identify an unknown skier with whom plaintiff, Mary Ryan O’Connell, collided while skiing. On appeal, defendant claims that it owed no duty to plaintiff to identify the other skier, that plaintiff’s claim is barred because the jury found that the accident resulted from an inherent risk of skiing, and that the court made errors in its charge to the jury. We reverse.

[*75] On January 12, 1990, plaintiff was skiing one of defendant’s most difficult trails. She stopped to rest at the edge of the trail and was struck by another skier who lost control on the ice at the center of the trail. One of [***2] defendant’s ski patrollers, along with plaintiff’s sister, arrived at the scene shortly after the collision. Plaintiff requested that they obtain the name of the other skier. While the ski patroller was occupied with evaluating and stabilizing plaintiff’s injury, plaintiff’s sister spoke to the other skier, and requested that he follow plaintiff to the patrol station and identify himself. The skier failed to arrive at the patrol station as requested, and has never been identified. Plaintiff’s injuries proved serious, and she and her husband filed suit against defendant in Rutland Superior Court, complaining that defendant negligently (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff’s injuries were the consequence of her assumption of the inherent risks of skiing.

The trial court denied defendant’s motion for directed verdict, both at the close of plaintiff’s case and at the close of the evidence. The court submitted the failure-to-warn and the failure-to-identify counts [***3] to the jury. In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant’s employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant’s negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.

Based on the instructions, the jury found for defendant on the failure-to-warn count and on the failure to close the trail because it found that the accident resulted from an inherent risk of the sport of skiing. It further found that defendant had negligently failed to obtain the identity of the other skier and that its negligence was the proximate cause of the loss of plaintiff’s “right to compensation” from that skier for her injuries. The jury awarded plaintiff $ 71,108.69 in damages, and the trial court denied defendant’s motions for judgment notwithstanding the verdict and for a new trial.

Defendant raises three issues on [***4] appeal: (1) whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided [*76] with her; (2) whether plaintiff’s failure-to-identify claim is precluded by the jury’s finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and (3) whether certain instructions to the jury were proper. We agree with defendant’s position on the first issue and, therefore, reverse. Because the case must be dismissed, we do not reach the second and third issues.

Defendant first claims that it owed plaintiff no duty to obtain the identity of the other skier, and that, accordingly, the trial court erred by instructing the jury that could find that defendant’s employee manual created such a duty. We agree.

In deciding this question, we first note that although the Vermont Legislature has passed a statute governing liability vis-a-vis the obtaining of names of skiers involved in a collision, see 12 V.S.A. § 1038(b)(2), this accident preceded the effective date of the statute so that it does not apply to this case. In any event, we conclude that the result in this case [**42] is the same under either the common law or the statute. 1 [***5]

1 [HN1] 12 V.S.A. § 1038(b), effective June 21, 1994, provides, in part:

(b) Collision at a ski area.

(1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.

(2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.

[HN2] Common-law negligence requires that there be a legal duty owed by defendant to plaintiff, breach of that duty, that such breach be the proximate cause of plaintiff’s harm, and that plaintiff have suffered actual loss or damage. See Langle v. Kurkul, 146 Vt. 513, 517, 510 A.2d 1301, 1304 (1986). Clearly, the first of these elements, duty, [***6] is central to a negligence claim, and its existence is primarily a question of law. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). The imposition of a duty is “‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.'” Id. (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)).

Plaintiff’s theory is that defendant had a duty to obtain the name of the skier who collided with her so plaintiff could sue that skier for her damages caused by the collision. Under plaintiff’s theory, this duty arises, first and foremost, because plaintiff’s injury occurred on [*77] defendant’s land, held open to the public for skiing. See Restatement (Second) of Torts § 314A(3) (1965).

In Langle, through the discussion of decisions from other states, we identified a number of factors to consider in determining whether a duty exits. See Langle, 146 Vt. at 519-20, 510 A.2d at 1304-05. [HN3] These factors may include the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and plaintiff’s injury, the moral blame [***7] attached to defendant’s conduct, the policy of preventing future harm, the burden to the defendant, the consequences to the community of finding a duty, and the availability and cost of insurance. Id. We think that an additional factor is more significant herd — that is, that plaintiff seeks a duty to prevent purely economic loss. Negligence law does not generally recognize a duty to exercise reasonable care to avoid intangible economic loss to another unless one’s conduct has inflicted some accompanying physical harm. See Prosser & Keeton, supra, § 92, at 657; Breslauer v. Fayston School Dist. Vt. , , 659 A.2d 1129, 1132 (1995). Thus, a possessor of land open to the general public has a duty to aid and protect a member of the public coming on the land against unreasonable risk of “physical harm” only. Restatement (Second) of Torts § 314A(1)(a), (3). Physical harm does not include economic loss. See Breslauer, Vt. at , 659 A.2d at 1132; Restatement (Second) of Torts § 7(3).

Our review of the decisions from other jurisdictions indicates that, [HN4] absent a special relationship or undertaking, there is no duty to protect [***8] another’s litigation interest. For example, there is no duty to preserve possible evidence for another party to assist that party in future litigation against a third party. See Edwards v. Louisville Ladder Co., 796 F. Supp. 966, 969 (W.D. La. 1992); Murphy v. Target Products, 580 N.E.2d 687, 689 (Ind. Ct. App. 1991); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177, 1179 (Kan. 1987). A municipal police force has no duty to investigate motor vehicle accidents to identify possible tortfeasors. See Jackson v. Heymann, 126 N.J. Super. 281, 314 A.2d 82, 85 (N.J. Super. Ct. Law Div. 1973); Caldwell v. City of Philadelphia, 358 Pa. Super. 406, 517 A.2d 1296, 1303 (Pa. Super. Ct. 1986). Similarly, a taxicab company owes no duty to an injured passenger to identify the operator of the vehicle which caused the accident and injured the passenger. See Stupka v. Peoples Cab Co., 437 Pa. 509, 264 A.2d 373, 374 (Pa. 1970). An exception to this rule may exist when there is some special relationship or duty arising from contract, statute or other special circumstance. See Bondu v. Gurvich, 473 So. 2d 1307, 1313 [**43] (Fla. Dist. Ct. App. 1984) [*78] (claim against defendant hospital for destruction of evidence permitted because hospital [***9] had statutory duty to maintain medical records); Koplin, 734 P.2d at 1179.

This general principle has been applied to circumstances identical to those present here. Two reported decisions have concluded that a ski area has no duty to obtain the identity of a negligent skier who collides with and injures the another skier. See Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159, 1164 (Idaho 1990); Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59-60 (Minn. Ct. App. 1989). Based on its prediction of our negligence law, the United States District Court for the District of Vermont determined that a ski area has no duty to identify the negligent skier. See Emil v. Sherburne Corp., No. 80-22, slip op. at 2-3 (D. Vt. July 8, 1980). We agree with that court that the landowner’s duty does not extend to “assisting the prosecution of claims arising from . . . torts” of third parties also using the land. Id. at 3.

We adopt the reasoning of the above decisions and conclude that no duty exists in these circumstances. Although our primary reason is the economic nature of the interest plaintiff asserts, other factors also point to the absence of a duty here. The main concern [***10] of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care. We are reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier. See Caldwell, 517 A.2d at 1301 (police duty at accident scene was to ensure victim’s physical well-being in expediting her trip to the hospital, not to protect the financial interests of the plaintiff).

Moreover, even if the ski area had a duty to identify, it would have only a limited ability to enforce that duty against an uncooperative skier. This suggests that any recognition of a duty should come from the Legislature, which can provide the ski area the means to discharge the duty. In fact, the Legislature has provided, as of 1994, that a skier involved in a collision has the responsibility “to provide his or her name and local and permanent address to the other parties to the collision,” but has also made clear that the ski area has no duty to obtain that identification. 12 V.S.A. § 1038(b).

Finally, we consider plaintiff’s argument that there is a special circumstance present [***11] in this case that creates a duty. Plaintiff relies primarily on defendant’s employee manual that establishes procedures [*79] in case of ski accidents. These procedures include completing an accident reporting form, obtaining names and addresses of witnesses to the accident, obtaining witness statements and recording observations at the accident scene. Plaintiff argues that these provisions amount to the voluntary assumption of a duty to investigate accidents, particularly skier collisions. See Restatement (Second) of Torts § 323 (one who gratuitously undertakes “to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability” for “physical harm” resulting from negligent performance of undertaking).

Although we agree that defendant could voluntarily assume the duty to investigate accidents on behalf of injured skiers, we do not believe that the manual provisions show the assumption of this responsibility. The manual makes clear that the investigatory responsibilities placed on employees are for the protection of defendant with respect to suits against it. There is nothing to indicate that they were assumed [***12] as duties to third parties.

This exact claim was made and rejected in Northcutt v. Sun Valley Co., 787 P.2d at 1164. The court held that imposing such requirements on employees did not create a duty to skiers to act on the skiers’ behalf. This holding is consistent with our decisions in similar circumstances. In Smith v. Day, 148 Vt. 595, 538 A.2d 157 (1987), engineers on a railway train sued Norwich University when a university student shot at the train and injured them. We concluded that, although defendant sought to control its students via the imposition of numerous rules and regulations, it did not assume a duty to third persons to control the volitional criminal [**44] acts of the students. Id. at 598, 538 A.2d at 159. More recently, in Larocque v. State Farm Ins. Co., Vt. , , 660 A.2d 286, 288 (1995), we concluded that a liability insurer’s employee manual, while directing employees to investigate claims in an efficient and cooperative manner, did not create any duty to a particular claimant to process the claim in good faith and consistent with the manual. Citing Smith, 148 Vt. at 598, 538 A.2d at 158-59, we stated that conducting [***13] one’s “business in a way that [is] responsive to third-party claimants does not create a legally enforceable duty to do so with respect to a particular claimant.” Id. To the extent defendant’s policy intended that its employees identify colliding skiers to aid in litigation between [*80] them, we believe that the rationale of Larocque is controlling and prevents use of defendant’s manual to create a negligence duty. 2

2 Plaintiff relies upon a Colorado trial court decision that denied a ski area summary judgment in a failure-to-identify case similar to that here. Burgener v. Keystone Arapahoe Ltd. Partnership, No. 90 CV 215, slip op. at 3 (Colo. Dist. Ct., Summit County Sept. 5, 1991). In that case, the plaintiff argued successfully that the defendant assumed the responsibility to investigate in certain publications and materials that were distributed to the public, including the plaintiff. These were read and relied upon by the plaintiff’s husband, who skied with her. This case has none of the public promotional and reliance elements of Burgener and is distinguishable on that basis.

[***14] In adopting this position, we are necessarily rejecting the suggestion that the jury could decide whether the manual creates a duty to investigate and identify the other skier. The trial court’s supplemental charge to the jury appears to have adopted this approach. As we indicated earlier, the existence of a duty is primarily a question of law. See Denis Bail Bonds, Inc., 159 Vt. at 487, 622 A.2d at 499. Although the proper meaning of the employee manual may have been a question of fact for the jury, if a duty were present under some construction of the manual, the threshold question of whether the manual, however construed, could give rise to a duty was for the court. See Smith v. Day, 148 Vt. at 598 n.3, 538 A.2d at 159 n.3.

Reversed.

FOR THE COURT: John A. Dooley, Associate Justice

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2012-2013 In bound ski/board fatalities

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.

Several Corrections have been made to items reported earlier.

If this information is incorrect or incomplete please let me know.  This is up to date as of March 28, 2013. Thanks.

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

2012 – 2013 Ski Season Deaths

Blue is a death of an employee while working

# Date State Resort Where How Ski / Board Age Sex Hometown Helmet Ref Ref
1 12/2 MI Boyne Highlands Resort Camelot fell within the slope boundaries and did not collide with any type of obstacle Boarder 17 F Alanson, MI http://rec-law.us/11JFVOo
2 12/21 CA Squaw Valley KT-22 strike the tree Skier 71 M Auburn, CA Yes http://rec-law.us/10ctrSt
3 12/24 CA Donner Ski Ranch Avalanche Boarder 49 M Hirschdale, CA http://rec-law.us/UCaHJz http://rec-law.us/Sgjsbi
4 12/24 CA Alpine Meadows Sherwood Bowl Avalanche Skier 53 M http://rec-law.us/13eiU72 http://rec-law.us/VGsqh5
5 12/30 CO Snowmass Hanging Valley Headwall Avalanche, swept over cliff Skier 49 F Patricia Hileman http://rec-law.us/RCv6fd http://rec-law.us/VOCr8H
6 1/4 CO Copper Mountain Vein Glory Hit Tree M Houston, TX No http://rec-law.us/RCy03u http://rec-law.us/VyzVnU
7 1/9 CO Keystone Frenchman Hit Tree Skier 20 F Austin, TX No http://rec-law.us/VSGVvz http://rec-law.us/WGPsjQ
8 1/9 CO Wolf Creek Hit Tree Skier 70 M Pagosa Springs, CO http://rec-law.us/XVWEj2
9 1/19 MD Wisp Squirrel Cage Hit tree Skier 40 M Rockville, MD http://rec-law.us/XPB9wz http://rec-law.us/UJnfeK
10 1/21 UT Park City Silver King Hit tree Skier 67 M NJ No http://rec-law.us/YchKpN http://rec-law.us/Wm6mrQ
11 2/3 CA Mammoth Lakes Wipe Out 2 Fell Skier M http://rec-law.us/14BKzzk
12 2/4 CO Aspen Mountain Jackpot run Collision Skier 48 F Philadelphia, PA Yes http://rec-law.us/YCh1hM http://rec-law.us/YChb8O
13 2/8 CO Keystone Porcupine Hit Tree Skier 27 M Palos Hills, IL (Hillman AFB NM) Yes http://rec-law.us/XbsYsL http://rec-law.us/XPtHkJ
14 2/10 CO Breckenridge Columbia Hit Tree Skier 45 M Reston, VA Yes http://rec-law.us/YtRJ3y http://rec-law.us/Ujx85e
15 2/22 MD Wisp Squirrel Cage Hit Tree Skier 38 M Upper Arlington, OH http://rec-law.us/133BO30 http://rec-law.us/UZfW57
16 3/2 WI Devils Head Ski Resort Hit Tree Skier 30 M Madison, WI http://rec-law.us/13Grw9f http://rec-law.us/WUwUUw
17 NJ Mountain Creek Hit surface Skier M No Email
18 3/13 ID Sun Valley Resort Roundhouse Lane Hit Tree Skier 38 F Hailey, ID Yes http://rec-law.us/140BJ0o
19 3/16 CA China Peak Mountain Resort Fell and/or hit stump Skier 49 M Fresno, CA Yes http://rec-law.us/YOYIHa
20 3/21 CO Steamboat Springs Ski Resort Hit Tree Skier 35 M http://rec-law.us/105wEOX
21 3/22 CO Snowmass Ski Area Coney Glade run & Lunchline trails Hit Tree Skier 42 M Kensington, Md Yes http://rec-law.us/ZkmHej http://rec-law.us/13pmmPR
22 3/27 UT Brighton Ski Area Found wrapped around tree Boarder 26 M Sandy, UT Yes http://rec-law.us/10m67gi http://rec-law.us/X0cqY7
23 3/3 UT Deer Valley Little Bell Hit Tree Skier 33 M No http://rec-law.us/13W2zI7 http://rec-law.us/16ztlSh
24 4/12 OR Mt Hood Meadows Hit Tree Skier 51 M Yes http://rec-law.us/15aIFse

There is a rumor, unsubstantiated of a fatality at a Colorado Ski Area. Supposedly a skier hit a tree.

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.

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What was the purpose of three days of Denver Post making things up about Colorado Ski Resorts?

The accomplishment was to put false information about ski resorts into the media stream.

The third and final installment of the Denver Post “investigation” (which in this case means reading their own newspapers and talking to a few people) into Colorado Ski Areas turned up very little.

First let’s get back to where the newspaper made things up.

The newspaper speculated that:

Not one of those who died in the past five seasons appeared to be drunk.

That would sort of indicate the newspaper had reporters there when someone died, however, we know that was not true. So that information as taken from “…autopsy reports, resort press releases and local newspaper accounts.” Newspaper accounts are from press release’s eye-witness accounts, Autopsy reports how they died, not their Blood-Alcohol Level and very few of those are available for review by members of the media. Remember my comments in earlier responses to privacy, both victims and the victims’ families. So the statement about the fatalities being drunk is basically made up.

The next speculation is:

If those who died had anything in common, it was catching an edge or losing control just long enough to crash into a tree on the side of a trail.

Granted if I were to guess how someone hit a tree, “catching and edge” is a good guess. But it is no more than that a guess.

Back to Bad Reporting

The article comes back around to the issue of state or federal oversight. Which is a bunch of hogwash. In Colorado, there is a US Forest Service employee who is tasked with watching over the ski areas that operate on US Forest Service land under a permit. Each county in the state has a health department which checks the restaurants and other health concerns just like any other business in the county. And each county has a sheriff who has the right to enter upon the ski area property which is open to the public to investigate a crime.

As far as releasing deaths and injuries to the public.

Let’s see what associations do report injuries and fatalities:

 

Flag Football

Hockey

Softball

Little League

American Kennel Club

Lady Bass Anglers Association

Climbing Wall Association

Paintball

 

Yet you know that people playing sports get hurt. Torn ligaments in any football game, missing teeth in hockey, torn everything and road rash in softball, injuries from getting hit by a ball in little league, dog bites, drowning, etc. etc. etc. If you play in a sport you can get hurt, and you can die.

Life is a sexually transmitted disease that is always fatal.

You can sit upon the couch and watch, or you can get out there, take on the risks and do it.

Then the article starts to weave a scary message around misstatements.

This information, however, is not separated by resort, or even by county, making it impossible for a concerned consumer to compare the safety records of ski areas  in Colorado or nationally. It also keeps consumers in the dark about what measures to take to protect themselves.

Say the resorts listed every injury and every death that occurred on it. What information in that could the consumer use to protect themselves? The article listed all the ways that people on slopes die that it could find.

…resulted from neck and skull fractures, torn aortas and suffocation after falling into tree wells, as well as inbounds avalanches and one person being impaled on a tree branch.

Neck and skull fractures occur when you hit something, hard. Torn Aortas occur when you hit something, hard. Of the four things listed, trees are the culprits that are the reason for deaths.

If you want consumer protection issues, stay away from trees. How can a journalist, let alone an editor, accuse resorts of hiding facts that could keep consumers safe then later in the same article state that trees cause people to die? You hit a tree at a high rate of speed, and you die.

So if you were comparing safety records of Colorado Ski Resorts, the safest resort would be one without any trees.

What other information could you glean from accident reports? Better, how many consumers would read them anyway.

Read the article: Colorado skiers die on groomed, blue runs after hitting trees

I’m not done though; the story has a little more.

After reading the article, along with a poll the Denver Post placed on its front page on Wednesday, March 20, I was curious. The poll asked readers to vote on whether ski areas should report deaths and injuries things got interesting.

In light of a recent Denver Post series on ski safety, should ski resorts be required to publicly report skiing and snowboarding deaths and injuries?

The articles with the poll are setting ski areas up for litigation. If deaths and injuries are reported, plaintiff’s attorneys will have the opportunity to contact injured guests. So basically the series of articles is an attempt to create more litigation for plaintiff’s attorneys.

The articles continually wanted the ski areas to do something that no other sport organization does, report injuries.

Why is that of interest?

The author of the three part article Karen E. Crummy is a graduate of University of San Francisco School of Law. Is the Denver Post attempting to use its influence, knowingly or unknowingly, to create more litigation? What is the relationship between Ms. Crummy and the plaintiff’s bar?

I could be wrong, but there seems to be a clear link; clearer than many of the stretches made in the articles.

See Karen E. Crummy — The Denver Post

Me?

I was given a head’s up about the articles from two different sources; Someone in the industry and the NSAA. I was given material to use, but I used none of it. The research I’ve done you can do on your own on the net, except for my experience from working for a resort for a couple of years more than a decade ago. In fact, other than my experience, everything in my articles can be verified online.

No one is paying me to do this (unless you want to!). I’m not getting anything from doing this, other than some personal satisfaction from trying to set the record straight.

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

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

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This is becoming a pain, Denver Post confusing irony and ironic.

Now the post is complaining about releases/waivers!

Here is the link to the Denver Post Ride the Rockies Waiver. See the Denver Post wants to protect itself with a waiver: http://rec-law.us/ZWjvaU

This is the link to the Denver Post Ride the Rockies volunteer manual which requires volunteers to sign a waiver: http://rec-law.us/Yl40em

Why am I giving you these? Because the second article in the Denver Post series about Colorado Ski areas complains about the Colorado Ski Industry using waivers. How the Denver Post can condemn waivers, while it uses waivers is at the least, interesting, better irony.

Why does the ski area use waivers? It saves you money. Yes, you. If you do not want to sign a waiver, you can skip buying a season pass. If you want to save money, then the money-saving needs to go both ways. The resorts need to save money also. A waiver allows them to save money by reducing the chance of litigation and the accompanying costs.

A waiver or waiver does something else for the skiers who sign them. It lets them know in advance who is going to pay their medical bills. That may seem to be at odds, but look at it from a different perspective. You can go skiing without signing a waiver rolling the dice on getting hurt and rolling the dice on suing to pay for your medical bills.  Now you know.

I want to ski 20 times and save money. Sign a waiver and save $1500.  Don’t want to sign a waiver, pay $2000+, it’s simple math.

The article says the waiver punishes Colorado residences because they have to sign a waiver. Colorado residents get to ski for $500 at Vail, et al as many times as they want.

This article, like the first article in the series, takes the law and misses it.

Operators do not have to post warning signs of maintenance equipment going to or from a grooming project….

However, the Colorado Skier Safety Act states:

33-44-108. Ski area operators – additional duties.

(1) Any motorized snow-grooming vehicle shall be equipped with a light visible at any time the vehicle is moving on or in the vicinity of a ski slope or trail.

(2) Whenever maintenance equipment is being employed to maintain or groom any ski slope or trail while such ski slope or trail is open to the public, the ski area operator shall place or cause to be placed a conspicuous notice to that effect at or near the top of that ski slope or trail. This requirement shall not apply to maintenance equipment transiting to or from a grooming project.

(3) 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.

The article attacks season pass waivers on many grounds. However, the article forgets that waivers are an integral and necessary part of Colorado’s biggest industry: tourism and travel. You sign a waiver to go whitewater rafting, canoeing, mountain biking, ride a horse, a zip line or go on a ropes course. Waivers allow the owner of a company to offer these activities to tourists at a price that makes them want to come to Colorado. article attacks season pass waivers on many grounds. However, the article forgets that waivers are an integral and necessary part of Colorado’s biggest industry: tourism and travel. You sign a waiver to go whitewater rafting, canoeing, mountain biking, ride a horse, a zip line or go on a ropes course. Waivers allow the owner of a company to offer these activities to tourists at a price that makes them want to come to Colorado.

Why is the Denver Post attacking the business that keeps Colorado afloat?

Read the article: Colorado ski industry enjoys protection from law, waivers

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

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#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, Denver Post, Ski Area, Colorado Ski Country USA, Ski Resort, Colorado Skier Safety Act, Colorado, Ski Area, Ski Resort, Ski Patrol, Denver Post, Colorado Ski Country, Colorado Ski Country USA, NSAA, NSP, National Ski Area Association, National Ski Patrol,

 


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.

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

Copyright 2012 Recreation Law (720) Edit Law

blog@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

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

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Skier claims resort liable for boundary rope, in place to prevent collisions, which she collided with…..

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see

The plaintiff in this case suffered a broken back, ribs, hip and pelvis after hitting a rope used to direct traffic at Taos Ski Valley, Inc (referred to as TSV by the court). The plaintiff was an experienced skier, and the rope had been in place for twelve years.

The plaintiff sued for:

…failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles; TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages; TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary; and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV….

Taos moved to dismiss three of the claims with a motion based on a failure to state a claim. That is a motion that argues based on the allegations of the plaintiff’s complaint, there is no legal liability on the part of the defendants. The plaintiff has failed to state a legal claim that the defendant can be held liable for. Two of those claims were dismissed.

The ski area then filed a motion for summary judgment, which dismissed the remaining claims of the plaintiff based on the New Mexico Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq.

So?

The plaintiff appealed the dismissal of her case. The first basis of her appeal was based on the NM Ski Safety Act. The act provides that:

…every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so….

She argued that the installation of the rope created a hazard which the ski area did not warn her about.

The court agreed with the ski area and held that even if the rope was a hazard, it was not feasible to correct the hazard and thus, under the statute, not a hazard the ski area needed to warn the plaintiff about.

The plaintiff then argued the ski area breached its duty because it did not mark its trails with the appropriate signage.

Section 24-15-7(C) provides:

Every ski operator shall have the following duties with respect to the operation of a skiing area:

* * *  

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .

The plaintiff’s expert witness opined that three ropes would be better and easier to see. However, the court found the expert’s opinion to be speculation and not persuasive. (Personally, three ropes create a real barrier. Think skiing into a fence rather than one line.)

The plaintiff’s next argument procedural in nature. Normally, I leave procedural issues out of this reviews, however this one might be good to know. The plaintiff wanted to depose the resort’s Chief Groomer and the Assistant head of the Ski Patrol. The resort filed a motion for a protective order which prevented the plaintiff from deposing these employees.

The appellate court held that since one of the senior employees of the resort was the responsible person, to who both subordinate employees ultimately reported, there was no need to depose the two employees. The Ski Area General Manager testified that he had the ultimate responsibility for marking the resort, which was enough for the court to prevent additional discovery.

The final issue not covered by the New Mexico Ski Safety Act is the plaintiff’s claim that based on the Special Use Permit issued by the US Forest Service to the ski area, she was a third party beneficiary, and permit/contract was breached.

This argument was rejected because the language of the New Mexico Ski Safety Act language indicated that the provisions within the act were to be the only remedy available to injured skiers.

The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].

As the sole remedy, the arguments of the plaintiff did not give rise to a claim.

So Now What?

This is a classic “damned if you do and damned if you don’t” situation for a defendant. If you don’t put up the rope, skiers are going to collide, causing injuries. If you do put up the rope, a skier may hit the rope. This is the balance test that a business must do in the US. To quote a sixties TV show turned into a 1980’s movie “In any case, were I to invoke logic, logic clearly dictates that the needs of the many outweigh the needs of the few.”

What do you think? Leave a comment.

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