A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.
Posted: May 14, 2018 Filed under: Case Analysis, Pennsylvania, Ski Area, Ski Area Statutes, Skiing / Snow Boarding | Tags: Assumption of risk, atmosphere, contravene, derivative, Downhill, exculpatory, Exculpatory clause, experienced, hazardous, Ice, icy, Inherent Risks, loss of consortium, matter of law, Notice, particularity, Pennsylvania Skier Safety Act, plain language, Public Policy, Release, release agreement, releasing, Resort, risk doctrine, season, Ski, Skier, skiing, Snow, Snowsports, Sport, website, written applica-tion Leave a commentThe defendant one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also, laid out the risks of skiing quite broadly in its information to the plaintiff.
Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania
Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill
Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.
Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area
Defendant Defenses: Assumption of the Risk and Release
Holding:
Year: 2006
Summary
Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.
Facts
The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)
While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.
The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.
A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.
Analysis: making sense of the law based on these facts.
The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”
Under Pennsylvania law, a release to be valid must:
The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.
The court then went through the facts in this case to see if the requirements under the law were met.
The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”
The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”
The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.
The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.
The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.
The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.
The court found that icy conditions were an inherent risk of skiing in Pennsylvania.
Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.
The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.
So Now What?
It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.
Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.
In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.
What do you think? Leave a comment.
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Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.
Posted: April 16, 2018 Filed under: Assumption of the Risk, Case Analysis, Pennsylvania, Ski Area, Ski Area Statutes, Skier v. Skier, Skiing / Snow Boarding | Tags: assumption of the risk, att, Collision, daughter, Downhill, drop-off, edge, elevation, experienced, foot, genuine, inherent, Inherent Risk, knee-jerk, Lift Ticket, matter of law, Pennsylvania Skier Safety Act, pile, Resort, rocks, Ski, skied, Skier, Skier's Responsibility Act, skiing, Slope, Snow, Snowboarder, specific risk, Sport, Summary judgment, Trail, veering Skier Safety Act Leave a commentThe terrain off of the trail was different than normally found at a ski area. A 3-4 drop off into a pile of rocks. However, the risk is skiing off the trail, not what you run into when you do.
Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013
State: Pennsylvania, United States District Court for the Middle District of Pennsylvania
Plaintiff: Quan Vu and May Siew
Defendant: Ski Liberty Operating Corp., et. al.
Plaintiff Claims: Negligence and Loss of Consortium
Defendant Defenses: Release
Holding: For the defendant
Year: 2018
Summary
The definition of an inherent risk when skiing is not what causes the injury, only the risk that led to the injury. Under Pennsylvania law, there is a broad definition of inherent risks and this case was dismissed because the plaintiff assumed those inherent risks, and the defendant did not owe a duty to protect him from those risks.
Facts
The plaintiff was an experienced skier, who had been skiing for twenty years. He was skiing behind his daughter at the defendant’s ski area. A snowboarder came close to the plaintiff or hit the plaintiff sending or causing him to ski off the trail. He went off the trail, over a 3-4 drop and landed in a pile of rocks.
…Mr. Vu does not recall much detail about his accident. Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. The last thing that Mr. Vu remembered was skiing with his daughter.
He sued the defendant ski area because it was:
…negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition.
The court granted the defendants motion for summary judgment.
Analysis: making sense of the law based on these facts.
The decision was based on the Pennsylvania Skier’s Responsibility Act. The court had to decide if the risks encountered by the plaintiff were inherent risks of skiing.
The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing. As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”
If there is no duty, then there can be no negligence.
Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.
Pennsylvania has a two-part test to determine if the defendant owed the plaintiff a duty.
First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of down-hill skiing.” If so, then summary judgment must be awarded against the plaintiff as a matter of law.
The first test was met; the plaintiff was skiing at the time of his accident.
The court then had to determine if the risks the plaintiff encountered were inherent to skiing. Under Pennsylvania law, inherent risks “are those that are “common, frequent, and expected” in downhill skiing.”
The plaintiff argued that because the plaintiff was no specifically aware of the risk of the 3-4-foot drop off and the pile of rocks, he could not assume the risk.
Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply.
In many cases, assumption of the risk would not be a defense if the injured plaintiff had no specific knowledge of the risk. However, it was not the case here under the statute. It did not matter if the Plaintiff had specific knowledge of the risk or a general knowledge of the risks of skiing, he assumed those risks.
The court then looked at the facts and found there were two circumstances that gave rise to the plaintiff’s injuries, veering to avoid a collision and skiing over the drop off.
The first is an inherent risk of skiing in Pennsylvania.
We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with an-other skier is one of the common, frequent and expected risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.
The next issue was whether skiing over the drop off into a pile of rocks was an inherent risk of skiing. Here again, the court found skiing off the trail, no matter what you may encounter once you are off the trail, is an inherent risk of skiing. The court backed its point up quite interestingly.
We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis.
The court found the defendant did not owe the plaintiff a duty because he assumed the risks of his injury under the Pennsylvania Skier’s Responsibility Act.
So Now What?
Actually, an easy case. Easy under Pennsylvania law because of the Pennsylvania Supreme Courts interpretation of the Pennsylvania Skier’s Responsibility Act. When skiing in Pennsylvania collisions with other skiers or boarders are an inherent risk of skiing and skiing off the trail is also.
What do you think? Leave a comment.
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Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013
Posted: April 15, 2018 Filed under: Assumption of the Risk, Legal Case, Pennsylvania, Ski Area, Ski Area Statutes, Skier v. Skier, Skiing / Snow Boarding | Tags: assumption of the risk, att, Collision, daughter, Downhill, drop-off, edge, elevation, experienced, foot, genuine, inherent, Inherent Risk, knee-jerk, Lift Ticket, matter of law, Pennsylvania Skier Safety Act, pile, Resort, rocks, Ski, skied, Skier, Skier Safety Act, Skier's Responsibility Act, skiing, Slope, Snow, Snowboarder, specific risk, Sport, Summary judgment, Trail, veering Leave a commentVu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013
Quan Vu and May Siew, Plaintiffs, v. Ski Liberty Operating Corp., et. al., Defendants,
1:16-cv-2170
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
2018 U.S. Dist. LEXIS 49013
March 26, 2018, Decided
CORE TERMS: skiing, trail, edge, downhill, ski, skier, snowboarder, sport, inherent risk, slope, collision, rocks, summary judgment, drop-off, att, daughter, skied, snow, pile, foot, lift ticket, knee-jerk, genuine, resort, Skier’s Responsibility Act, matter of law, specific risk, experienced, elevation, veering
COUNSEL: [*1] For Quan VU, May Siew, Plaintiffs: D. Aaron Rihn, Mark D. Troyan, LEAD ATTORNEYS, Robert Peirce & Associates, P.C., Pittsburgh, PA USA.
For Ski Liberty Operating Corp. doing business as Liberty Mountain Resort, Defendant: Anthony W. Hinkle, Snow Time, Inc., Cipriani & Werner, P.C., Philadelphia, PA, USA.
For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Plaintiffs: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.
For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Defendants: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.
JUDGES: Hon. John E. Jones III, United States District Judge.
OPINION BY: John E. Jones III
OPINION
MEMORANDUM
Plaintiffs are Quan Vu and his wife, May Siew. (“Plaintiffs”). Defendants are Ski Liberty Operating Corp. and Snow Time, Inc., operating as Liberty Mountain Resort. (“Defendants”). This action arises out of a skiing accident at Liberty Mountain that left Mr. Vu severely injured. The complaint brings one count of negligence on behalf of Mr. Vu and one count of loss of consortium on behalf of Mrs. Siew, both alleging that the accident was caused by the Defendants’ negligence in maintaining the ski slope and failing to warn Mr. Vu of [*2] the slope’s hazardous condition. (Doc. 1). Presently pending before the Court is the Defendants’ motion for summary judgment. (the “Motion”) (Doc. 36). The Motion has been fully briefed and is therefore ripe for our review. (Docs. 38, 42, 43). For the reasons that follow, the Motion shall be granted.
I. BACKGROUND
On January 23, 2015, Mr. Vu was downhill skiing with his daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu was following his daughter from behind as they skied down the Lover Heavenly trail, a blue square intermediate hill, when he had his accident. (Id. at ¶¶ 24-25). Due to his injuries, Mr. Vu does not recall much detail about his accident. (Doc. 37, ¶ 11). Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. (Id. at pp. 65-66). The last thing that Mr. Vu remembered [*3] was skiing with his daughter. (Id. at p. 66).
Mr. Vu’s daughter testified: “I saw someone get really close to him and he was trying to avoid them and it was either ramming into him, the snowboarder, or person who was trying to get really close to him, or veering off path.” (Doc. 42, att. 2, p. 8). “He — there was someone trying to kind of get really close to him. And he didn’t want to ram into him. So he — I don’t really understand — know what happened. But he tried to avoid it. And there was like a big ditch or something there. And he tried to stop and tried to avoid the person who was trying to cut him off.” (Id.). “My dad was — the snowboarder was — my dad was kind of like the ham in the middle of a sandwich. Between the end of the trail, the edge of the trail and the snowboarder.” (Id. at p. 9). “I just felt that the snowboarder was getting quite close to my dad and I didn’t want a collision to happen or the snowboarder to ram into my dad.” (Id. at p. 10).
Ultimately, whether he did so intentionally or not, Mr. Vu skied off of the edge of the trail and suffered catastrophic injuries. There was a drop-off at the edge of the ski trail of about three to four feet. (Doc. 41, ¶ 32). Below that drop-off was a large pile [*4] of rocks. (Id. at ¶ 31). Mr. Vu skied off of the edge of the trail, off of the embankment, and landed on the pile of rocks. (Doc. 37, ¶ 11).
Mr. Vu was an experienced skier at the time of his accident. He had skied for over twenty years and was capable of skiing black diamond slopes. (Id. at P 6). Mr. Vu testified that he was familiar with the Skier’s Responsibility Code and understood that he was responsible for skiing in control and in such a manner that he could stop or avoid other skiers. (Id.). Mr. Vu also testified that he understood that skiing is a dangerous sport and that he could get hurt if he skied out of control or if he fell. (Id.).
On the day of his accident, Mr. Vu’s wife purchased his Liberty Mountain Resort Lift Ticket. (Id. at ¶ 18). The back of the lift ticket reads as follows:
PLEASE READ
Acceptance of this ticket constitutes a contract. The conditions of the contract are stated on this ticket & will prevent or restrict your ability to sue Liberty Mountain Resort. If you do not agree with these conditions, then do not use the facility. Snowsports in their various forms, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are [*5] not limited to: variations in snow, steepness & terrain, ice & icy conditions, moguls, rocks, trees & other forms of forest growth or debris (above or below the surface), bare spots, lift towers, utility lines & poles, fencing or lack of fencing, snowmaking & snowgrooming equipment & component parts, on-snow vehicles & other forms of natural or man-made obstacles, and terrain features on or off designated trails as well as collisions with equipment, obstacles or other snowsport participants. Trail conditions vary constantly because of weather changes and use. All the inherent and other risks involved present the risk of permanent catastrophic injury or death. In consideration of using Liberty’s facilities, the purchaser or user of this ticket agrees to accept the risks of snowsports and understands and agrees that they are hazardous and further agrees NOT TO SUE Ski Liberty Operating Corp., its owners or employees if injured while using the facilities regardless of any negligence, including gross negligence, on the part of the resort, and/or its employees or agents. The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in the sport, and agrees [*6] to report all injuries before leaving the resort . . .
(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was uncertain if he read the language on the lift ticket on the day of his accident, he testified that he had read it at some point prior to his accident. (Doc. 37, ¶ 20). At his deposition, Mr. Vu was asked to read portions of the lift ticket and he had trouble doing so because the font was too small. (Doc. 37, att. 1, p. 70).
Mr. Vu and his wife initiated this action with the filing of a complaint on October 27, 2016. (Doc. 1). Plaintiffs allege that Defendants were negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition. Defendants filed the instant motion for summary judgment on January 31, 2018. (Doc. 36).
I II. LEGAL STANDARD
Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute [*7] is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P. 56(c)(1).
A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the [*8] mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).
III. DISCUSSION
Defendants move for summary judgment on two legal bases. First, Defendants argue that Plaintiffs’ claims are barred as a matter of law because Mr. Vu’s injuries were caused by an inherent risk of skiing. Second, Defendants argue that Plaintiffs’ claims are barred by the exculpatory release language contained on the Liberty Mountain lift ticket. Because we find that Mr. Vu’s injuries arose out of risks inherent to the sport of downhill skiing, we hold that Defendants are entitled to summary judgment as a matter of law without even considering the exculpatory release language of the lift ticket.
The material facts surrounding Mr. Vu’s accident are not in dispute. Though Mr. Vu and his daughter are unclear on the specifics, it is undisputed that Mr. Vu ended up skiing off of the trail, over a drop-off, and into a pile of rocks. (Doc. 37, ¶ 11). Mr. Vu testified that a snowboarder was getting too close to him and his “knee-jerk” reaction was to veer to avoid a collision, causing him [*9] to ski off of the trail and over the embankment. (Doc. 37, att. 1, pp. 65-66). Mr. Vu’s daughter also testified that her father’s accident occurred when he tried to avoid a collision with a snowboarder. (Doc. 42, att. 2, p. 8). While Defendants argumentatively refer to this person as the “phantom snowboarder” and question the credibility of the testimony, for purposes of this Motion we can take Plaintiffs’ facts as true and assume that Mr. Vu skied off of the trail, either intentionally or as a result of a knee-jerk reaction, to avoid colliding with a snowboarder. Even so, summary judgment must be granted in favor of the Defendants because Mr. Vu’s accident occurred as a result of inherent risks of downhill skiing.
The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing.” 42 Pa. C.S. § 7102(c). As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a [*10] place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.
In Hughes v. Seven Springs Farm, Inc., the Supreme Court of Pennsylvania established a two-part test for courts to use to determine whether a plaintiff’s claims are barred by the no duty rule of the Skier’s Responsibility Act. 762 A.2d 339, 343 (2000). “First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” Id. at 344. “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of downhill skiing.” Id. If so, then summary judgment must be awarded against the plaintiff as a matter of law. Id. In the case at-bar, there can be no dispute that Mr. Vu was engaged in the sport of downhill skiing at the time of his accident. The salient question, therefore, becomes whether veering off-trail and over a drop-off into a pile [*11] of rocks to avoid a collision with a snowboarder are inherent risks of downhill skiing. If those risks are inherent to skiing, then Defendants had no duty to protect Mr. Vu. Chepkevich, 2 A.3d at 1186. If those risks are not inherent, traditional principles of negligence apply and we must determine what duty the Defendants owed Mr. Vu, whether the Defendants breached that duty, and whether the breach caused Mr. Vu’s injuries.
We begin with a discussion of what it means for a risk to be “inherent.” The Hughes court explained that “inherent” risks are those that are “common, frequent, and expected” in downhill skiing. Id. In interpreting risks, the Supreme Court of Pennsylvania has instructed that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Chepkevich, 2 A.3d at 1187-88. “Accordingly, courts have rejected attempts by plaintiffs to define the injury producing risks in very a specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017) (Mariani, J.). For example, the Supreme Court of Pennsylvania in Chepkevich rejected the plaintiff’s argument that she did not assume the “specific [*12] risk” involved, looking instead to the “general risk” that gave rise to the accident. 2 A.3d at 1188. A number of courts have addressed the scope of the Skier’s Responsibility Act and have concluded that some of the inherent risks of downhill skiing include: lack of netting, improper course plotting, or soft snow1; skiing off trail and striking a tree2; collisions with unpadded snow equipment poles3; striking a fence on the edge of the trail4; and collisions with other skiers or snowboarders.5
1 Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir. 2008).
2 Id.
3 Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983).
4 Cole, 2017 WL 4621786, at *5.
5 Hughes, 762 A.2d 339.
Before addressing the risks that Mr. Vu encountered, we must address Plaintiffs’ initial argument that the assumption of the risk doctrine is inapplicable. Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8) (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply. (Id. at pp. 9-13). For support of this argument, Plaintiffs cite several cases that are materially distinct from the case at-bar. First, Plaintiffs [*13] quote Barillari v. Ski Shawnee, Inc., “[i]t is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks.” 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013). Importantly, the court made this statement when analyzing the doctrine of voluntary assumption of the risk after determining that the Skier’s Responsibility Act was not applicable because the plaintiff was not engaged in the sport of downhill skiing at the time of the accident. Id. at 561. The instruction of this quote is inapplicable to our consideration of the no duty doctrine of assumption of the risk.
Next, Plaintiffs rely heavily on Bolyard v. Wallenpaupack Lake Estates, Inc., 2012 WL 629391(M.D. Pa. Feb. 27, 2012) (Caputo, J.). In Bolyard, the plaintiff sued the defendant for negligence after sustaining injuries while snow tubing on the defendant’s property. Id. at *1. The court recognized that while the plaintiff had “general knowledge” of the dangers of snow tubing on the hill, she did not assume the risk because “there is no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Id. at *6. Plaintiffs argue that “[s]imilar to the patron in Bolyard,” Mr. Vu was only generally aware of the risks he could suffer while skiing and thus assumption of the risk is inapplicable. (Doc. [*14] 42, p. 8). We disagree.
Notably, the slope in Bolyard was an old slope that was not currently in operation. 2012 WL 629391, at *1. The court used principles of negligence as applicable to landowners and licensees to determine the duty owed to the plaintiff and, consequently, considered the doctrine of voluntary assumption of the risk as a defense. Id. at **3-6. Analyzing the present action under the no duty rule, we do not consider the defense of voluntary assumption of the risk; instead, we must determine whether Mr. Vu’s injuries arose out of an inherent risk of the sport of skiing such that the Defendants had no duty at all. Pursuant to Hughes and the Skier’s Responsibility Act, there is no duty to protect a skier from the inherent risks of skiing and therefore, “when inherent risks are involved, negligence principles are irrelevant.” Id.
Finally, Plaintiffs cite Perez v. Great Wolf Lodge of the Poconos LLC,6
Staub v. Toy Factory, Inc.,7
Jones v. Three Rivers Mgmt. Corp,8 and Telega v. Sec. Bureau, Inc.9 in support of their position that assumption of the risk does not apply because Mr. Vu did not appreciate the specific risks that caused his accident. To start, none of these cases address the Skier’s Responsibility [*15] Act. These cases discuss appreciation of specific risk only after determining that the no duty rule was inapplicable because the risk encountered was not inherent. Again, we reiterate that “[n]egligence principles are irrelevant where the ‘no duty’ rule applies.” Lin v. Spring Mountain Adventures, Inc., 2010 WL 5257648, at *7 (E.D. Pa. Dec. 23, 2010). Whether the no duty rule applies turns on whether Mr. Vu’s particular injuries arose out of risks inherent in the sport of skiing — an issue that is not dependent on a plaintiff’s subjective awareness of those specific risks.
6 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (Mariani, J.).
7 749 A.2d 522, (Pa. Super. 2000).
8 483 Pa. 75, 85, 394 A.2d 546, 551 (1978).
9 719 A.2d 372, 376 (Pa. Super. Ct. 1998).
We now turn to the risks involved in Mr. Vu’s accident. The facts reveal two circumstances that gave rise to Mr. Vu’s injuries: (1) veering to avoid a collision with a snowboarder; and (2) skiing over the drop-off at the edge of the trail and into a pile of rocks. If these risks are inherent to the sport of downhill skiing, Plaintiffs’ claims cannot stand.
We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with another skier is one of the common, frequent and expected [*16] risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Hughes, 762 A.2d at 344. Likely in recognition of the clear case law, Plaintiffs do not argue in their brief in opposition to the Motion that avoiding a collision with a snowboarder is a risk that would give rise to a duty on behalf of Defendants. To the extent that Plaintiffs’ claims of negligence are premised on Mr. Vu’s avoidance of a collision with the snowboarder, those claims must fail.
Next, we consider whether skiing over the edge of the trail and encountering a three to four foot drop-off into a pile of rocks is an inherent risk of downhill skiing. Plaintiffs frame this risk as the primary cause of Mr. Vu’s injuries.10 “Simply put, the risk of ejectment from a ski trail due to a 3 to 4 foot drop off and striking one’s head on rocks and/or boulders . . . is not an inherent, frequent, common, and expected risk of skiing.” (Doc. 42, p. 11). All parties recognize that the drop-off was at the edge of the trail rather than a ditch or hole in the slope itself. Though Plaintiffs stress that Mr. Vu did not “willingly [*17] decide to ski off trail,” the distinction is of no consequence. Plaintiffs describe the incident in terms of Mr. Vu being “ejected” from the trail due to the embankment, but it is illogical to argue that the existence of the drop-off itself would cause a skier to go over it. Whether Mr. Vu did so intentionally, accidentally, or as a means of avoiding a collision, the incontrovertible fact is that Mr. Vu did, ultimately, ski off of the three to four foot edge of the trail.
10 “. . . the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8); “Even if Defendant could establish that having a 3 to 4 foot trail edge drop presents a danger inherent to the sport of skiing . . .” (Id. at p. 9); “. . . he was ejected from the trail when attempting to avoid a collision and was confronted with a 3 to 4 foot drop in elevation from the ski trail.” (Id. at p. 11).
We hold that the risk of skiing off trail and suffering from the change of elevation between the trail and surrounding terrain is an inherent risk of downhill skiing. Mr. Vu was an experienced skier who was well aware of the risks of skiing off the designated slope; he testified repeatedly that he “would never ski off-trail.” (Doc. 41, att. 1, p. 43). He had previously skied at Liberty Mountain on multiple occasions and could not remember ever complaining about the trail or trail markings. (Id. at pp. 35-36). Additionally, Mr. Vu’s daughter testified that she did not have any difficulty discerning the edge of the slope where her father went off trail the evening of the accident. (Doc. 41, att. 2, p. 14). It would be irrational for [*18] any court to hold that skiing off trail and encountering dangerous terrain is not an inherent risk of the sport of downhill skiing — ski slopes are marked and maintained in appreciation of this risk, and beginner and experienced skiers alike know to stay within the trail limits to avoid injury. Mr. Vu himself testified that he understood that he could run into trees, rocks, boulders, or snowmaking equipment if he skied off trail. (Doc. 37, att. 1, p. 71).
We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis. One case from the New York appellate court, however, was particularly analogous. In Atwell v. State, the plaintiff was skiing near the edge of the trail when he observed a “floundering” skier in his path. 645 N.Y.S.2d 658, 659 (1996). Plaintiff “instinctively reacted and turned without thinking” to avoid a collision and ended up skiing off trail and into a tree. Id. The court easily found that plaintiff’s injuries were due to inherent risks of skiing. Id. at 650. “[F]rom claimant’s own description of the accident, there can be no dispute that everything he encountered, including the skier he turned [*19] to avoid hitting, the berm at the edge of the trail referred to by claimant’s expert and the tree with which he collided, are all statutorily recognized as inherent dangers of skiing.” The court noted that “[c]laimant chose to ski near the edge of the trail and there is nothing in the record to indicate that the location of the edge of the trail was not readily observable to him.” Id. Similarly here, Mr. Vu was an experienced skier who chose to ski near the edge of the slope. He had a knee-jerk reaction to avoid a skier, and ended up veering off of the trail and suffering from the elevation change and his collision with rocks. Not only is there a lack of any evidence that the edge of the trail was difficult to discern, but Mr. Vu’s daughter testified at length about how her father was close to the edge of the trail and specifically stated that she could observe the edge of the slope without difficulty. (Doc. 41, att. 2, p. 14).
We agree with the Supreme Court of New Hampshire, which simply held: “Even the most generous reading of the plaintiff’s pleadings reveals the chief cause of his injuries to be an unenumerated, yet quintessential risk of skiing: that a skier might lose control [*20] and ski off the trail. By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.” Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 684, 671 A.2d 548, 553 (1996).
IV. CONCLUSION
For the foregoing reasons, the Motion shall be granted. A separate order shall issue in accordance with this memorandum.
ORDER
Presently before the Court is Defendants’ motion for summary judgment. (Doc. 36). In conformity with the Memorandum issued on today’s date, IT IS HEREBY ORDERED THAT:
1. Defendants’ motion for summary judgment (Doc. 36) is GRANTED.
2. The Clerk of the Court SHALL CLOSE the file on this case.
/s/ John E. Jones III
John E. Jones III
United States District Judge
Ritari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711
Posted: April 1, 2018 Filed under: Legal Case, Michigan, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Chair Lift, Inherent Risk, Michigan, skiing Leave a commentRitari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711
Ronald Ritari, JR. and Tama Ritari, Plaintiffs-Appellees, v Peter E. O’dovero, Inc., doing business as Marquette Mountain, Defendant-Appellant.
No. 335870
COURT OF APPEALS OF MICHIGAN
2017 Mich. App. LEXIS 1711
October 24, 2017, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
SUBSEQUENT HISTORY: Motion granted by Ritari v. Peter E. O’Dovero, 2018 Mich. LEXIS 90 (Mich., Jan. 12, 2018)
PRIOR HISTORY: [*1] Marquette Circuit Court. LC No. 16-054384-NO.
CORE TERMS: skiing, nastar, rope, training, ski, chair lift, racing, placement, sport, registration form, hazard, recreational, ski area, participating, skier, lift, competitive, competitor, hazardous, alpine, matter of law, clearance, snowboarding, season, risks associated, reverse side, unambiguous, susceptible, entangled, ambiguous
JUDGES: Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ.
OPINION
Per Curiam.
In this interlocutory appeal,1 defendant, Peter E. O’Dovero, Inc, d/b/a Marquette Mountain, challenges the trial court’s order denying defendant’s motion for summary disposition under MCR 2.116(C)(7) (release, immunity granted by law) and (C)(10) (no genuine issue of material fact, movant entitled to judgment as a matter of law). The case arises out of an incident at Marquette Mountain ski resort that occurred when plaintiff, Ronald Ritari, Jr., was riding up the ski hill on a chair lift and became entangled in a rope that had been installed underneath the lift, which pulled him off the lift and caused him to sustain serious injuries in the ensuing fall.2 Because material questions of fact remain, we agree with the trial court that summary disposition is inappropriate at this time.
1 Ronald Ritari Jr v Peter E O’Dovero, Inc, unpublished order of the Court of Appeals, entered April 20, 2017 (Docket No. 335870).
2 Plaintiff Tama Ritari’s claim is derivative of her husband’s; therefore, “plaintiff” refers to Ronald Ritari, Jr.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On the evening of January 29, 2015, plaintiff went to Marquette Mountain to ski. He was a season pass holder there and enjoyed NASTAR3 racing. According to plaintiff’s complaint and affidavit, at around 6:45 p.m. he and his son boarded [*2] a chair lift to reach the top of the hill for their first run of the evening. They planned to take a couple of pleasure runs down the hill before their Thursday night ski league began. When his chair was approximately 20 yards from the loading zone, a gust of wind pulled the chair down and the tips of plaintiff’s skis became entangled in a nylon rope attached to the ground by two poles directly below the chair lift. Plaintiff was able to free the tip of his left ski from the rope, but he was unable to free the tip of his right ski, and he felt his leg being pulled backward as his chair continued to move up the hill. Plaintiff grabbed the middle pole of the chair to keep from falling and screamed as loudly as he could for the chair lift operator to stop the lift. But the chair lift did not stop, and plaintiff was pulled out of his chair by the rope. He fell approximately 12 feet to the ground and sustained a fractured pelvis and fractured ribs.
3 According to its website, NASTAR is the “largest public grassroots ski racing program in the world” and “gives recreational racers an opportunity to compete and compare their scores to friends and family regardless of when and where they race using the NASTAR handicap system.” NASTAR competitions typically occur on grand slalom and slalom courses laid out by the host ski resorts in accordance with NASTAR’s instructions. http://www.nastar.com (accessed 9/15/17).
Plaintiff filed suit against defendant, alleging that the ski area was negligent by having ropes in the area of the chair lift, failing to post warnings of the danger, failing to take measures to prevent plaintiff from catching his skis on the [*3] rope, failing to employ the emergency stop when plaintiff yelled for help, and failing to adequately supervise and control the chair lift. Before any discovery began by way of interrogatories, depositions, or otherwise, defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(10), contending that plaintiff had signed releases broad enough to bar any claim for injuries arising out of the incident. Defendant relied on three forms signed by plaintiff.
Specifically, On December 13, 2014, in conjunction with purchasing an annual ski pass at Marquette Mountain for the 2014-2015 season, plaintiff signed a release wherein he agreed to assume “the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing/snowboarding . . . .” On December 16, 2014, he filled out a document in order to participate in NASTAR races. The document, a single sheet of paper, contains two forms, one on the front and one on the back. Hand-printed vertically in capital letters along the right side of both forms are the instructions, “FILL OUT BOTH SIDES.”
On the front side of the NASTAR document is a registration form. The form has headings entitled “Registration Form,” “Racer Information,” [*4] “Team Information,” and “Waiver and Release of Liability.” According to the release language on this form, plaintiff, “in exchange for being permitted to participate in NASTAR events (the “Event”),” assumes all risks associated with his involvement in the event and the “risk of injury caused by the condition of any property, facilities, or equipment used during the Event, whether foreseeable or unforeseeable.”
On the reverse side of the NASTAR document is a release entitled “Marquette Mountain Ski Area, and Competition Participant” (henceforth, the “Participant release”). According to the relevant terms of this release, “Participant, the undersigned, being at least 18 years old . . . agrees and understands that alpine skiing and snowboarding in its various forms (hereinafter the “Activity”) is HAZARDOUS4 and may involve the risk of physical injury or death.” The Participant also agrees that “training or racing competitively is more HAZARDOUS than recreational skiing,” that he or she is “a competitor at all times, whether practicing for competition or in competition.” According to the release, the Participant assumes all risks associated with the Activity, including but not limited to [*5] the risk of all course conditions, course construction or layout and obstacles, risks associated with riding the lifts, and risks associated with ski lift operations and acts or omissions of employees. The Participant agrees to release defendant from “all liabilities” arising from engagement in “the Activity,” including any injuries caused by the actual negligence of defendant’s employees. In its motion for summary disposition, defendant contended that, by signing this release, plaintiff assumed “all” risks, argued that “all” left no room for exceptions, and stressed that the terms of this release barred plaintiff’s claim for negligence as a matter of law.
4 A fold or wrinkle in the copy of the release that is in the record obscures this word. However, defendant quotes the relevant section of the release in its motion for summary disposition as “I further agree and understand that training or racing competitively is more HAZARDOUS than recreational skiing.”
In support of its motion, defendant also argued that MCL 408.342(2), the assumption of risk provision in the Ski Area Safety Act of 1962 (SASA), MCL 408.321 et seq., operated to bar plaintiff’s claim because risks associated with fencing and falling from a chair lift inhere in the sport of skiing.
Plaintiff countered that neither the season-pass release nor the assumption of risk provision in SASA barred his claim because the inappropriate placement of a rope directly under the chair lift was not an inherent risk of skiing. Additionally, plaintiff argued that the [*6] rope was not necessary because its placement violated the standards governing minimum clearance between a chair lift and an obstacle below, and it was not obvious because he neither saw it nor expected it to be placed where it was. He further argued that neither side of the executed NASTAR document barred his claim because he was not engaged in a NASTAR event, nor was he training for such an event when he was injured. Finally, plaintiff contended that there remained genuine issues of material fact regarding whether defendant’s chair lift personnel were inattentive and failed to timely shut off the chair lift when the rope entangled him, and that this was not a risk assumed pursuant to the assumption of risk provision of SASA.
At the motion hearing, defendant argued that the Participant release on the back side of the NASTAR document applied not just to competitions and training for competitions, but to “skiing in all its forms.” Accordingly, the Participant release controlled resolution of the matter and insulated defendant from any alleged negligent placement of the nylon rope. At the same time, defendant insisted that it had not been negligent in placement of the rope at issue because [*7] the rope’s location complied with required clearance standards and was necessary to the safety of skiers.5 Plaintiff reiterated his argument that the forms on both sides of the NASTAR document pertained to participation in competition-related skiing, and that the rope at issue was neither necessary nor obvious with respect to any assumption of the risk plaintiff assumed when signing up for his season pass or through SASA.
5 Defendant acknowledged plaintiff’s argum
Accreditation is marketing. In fact, it may be why you are being sued.
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Accreditation is marketing. In fact, it may be why you are being sued.
Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.ent about the front side of the NASTAR document focusing on event racing and the fact that the release language there and in the season pass document coincides with the language of SASA, which is commonly referred to as the assumption of the risk clause. As such, while arguing that the rope at issue was a necessary and obvious danger, defendant focused on the back side of the NASTAR document and its “sweeping” release of defendant’s own negligence for the purpose of his motion for summary disposition at such an early stage in the litigation.
Ruling from the bench, the trial court noted that construing the viability of plaintiff’s claim under SASA turned on necessary factual findings yet to be made, rendering summary disposition inappropriate at that point in the proceedings. With regard to the releases, the trial court observed that the parties’ arguments were geared toward the form on the reverse side of the NASTAR document. The trial court easily dispensed with the front page as being race-related. As for the back side, the Participant release, the trial court concluded that there were questions about the extent to which the release might apply to relieve defendant of liability outside the context of racing or training.
In addition to its location on the back of the NASTAR form, the trial court pointed [*8] to three phrases in the Participant release that seem to limit the scope of that release to training for or participating in a competition. The first is the phrase in which the participant agrees with the premise “that Participant is a competitor at all times, whether practicing for competition or in competition.” The second is the provision, “Participant is always provided an opportunity to and will conduct a reasonable visual inspection of the training or racecourse.” The third phrase is, “I further agree and understand that training or racing competitively is more [hazardous] . . . than recreational skiing.” The trial court described the language of the release as “a little ambiguous” and concluded that in light of the questions about the extent to which the release might apply to relieve defendant of all liability at any time, even when the person who signed it is simply recreationally skiing, summary disposition was premature.
II. ANALYSIS
Defendant contends that the trial court erred in denying its motion for summary disposition because the unambiguous language of the December 16, 2014 Participant release releases it from all liability regardless of whether plaintiff was injured [*9] while practicing for a competition, in competition, or simply skiing recreationally. It also claims that it is entitled to summary disposition under the assumption of the risk statute in SASA, MCL 408.343(2). We conclude that defendant is racing too quickly to the finish line in this case, to which it may or may not be entitled a victory.
We review de novo a trial court’s ruling on a motion for summary disposition, Casey v Auto Owners Ins Co, 273 Mich App 388, 393; 729 NW2d 277 (2006), as well as issues involving contractual and statutory interpretation, Rodgers v JPMorgan Chase Bank NA, 315 Mich App 301, 307; 890 NW2d 381 (2016).
A. RELEASE
Summary disposition under MCR 2.116(C)(7) is appropriate where the terms of a release bar a claim. As this Court has explained,
The scope of a release is governed by the intent of the parties as it is expressed in the release. If the text in the release is unambiguous, the parties’ intentions must be ascertained from the plain, ordinary meaning of the language of the release. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity. [Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 13-14; 614 NW2d 169 (2000).]
In addition, a contract must be read as a whole, Dobbelaere v Auto-Owners Ins Co, 275 Mich App 527, 529; 740 NW2d 503 (2007), and “construed so as to give effect to every word or phrase as far as practicable,” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003). See [*10] also Restatement Contracts, 2d, § 202, p 86 (“a writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together.”).6 The interpretation of an unambiguous contract is a matter of law. Mich Nat’l Bank, 228 Mich App 710, 714; 580 NW2d 8 (1998).
6 See also Restatement Contracts, 1st, § 235 (“A writing is interpreted as a whole and all writings forming part of the same transaction are interpreted together.”).
After our review of the language of the Participant release, we disagree with the trial court’s conclusion that the language of the release is ambiguous, or in other words, “reasonably susceptible to more than one interpretation.” Xu v Gay, 257 Mich App 263, 272 668 NW2d 166 (2003) (“A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation.”). However, we agree with plaintiff, not defendant, as to its meaning and scope. Several factors indicate that the NASTAR registration and Participant release were part of the same transaction–which is in fact undisputed–and therefore, should be read and interpreted together: the “Participant” release is on the reverse side of the NASTAR registration form, both forms bear the handwritten instruction to “fill out both sides,” and plaintiff executed both releases on the same date specifically in order to participate in NASTAR races. We conclude that, when read as a whole and interpreted in conjunction with the NASTAR registration form on its reverse side, [*11] the language of the Participant release is unambiguous and intended to relieve defendant of “all liability” for injuries suffered during training for or participating in a racing competition.
As noted above, the trial court identified three examples where the language of the release focuses specifically on competitive skiing. After identifying the “Activity” in which the Participant is participating as “alpine skiing and snowboarding in its various forms” and noting that it may involve physical injury or death, the release requires the participant to “agree and understand that training and racing competitively is more [hazardous] than recreational skiing” (emphasis added). In addition, the release requires the participant to “agree with the Premise that Participant is a competitor at all times, whether practicing for competition or in competition” (emphasis added). Note that it does not also say when simply pleasure skiing or taking the children out for lessons on the bunny hill. Further, the Participant is required to “agree that Participant is always provided an opportunity to and will conduct a reasonable visual inspection of the training or racecourse” (emphasis added). This focuses [*12] on race-related activities. Even without consideration of the NASTAR release, the fact that the Participant release requires the participant to agree expressly to statements emphasizing the dangers of training for and participating in competitive racing specifically renders the release susceptible to the interpretation that its focus is on insulating defendant from liability for injuries sustained by participants when training for or competing in races.
Defendant contends that the Participant release’s acknowledgement that competitive racing is more hazardous than recreational skiing does not restrict the release’s scope to competitive skiing. However, the release does more than merely acknowledge the dangers of competitive skiing; it requires the Participant to expressly agree that competitive skiing is more hazardous than recreational skiing. Moreover, under the defendant’s alleged interpretation, the Participant’s acknowledgement that he or she is a competitor at all times renders it impossible for the person who signs the release as a “Participant” to ever ski recreationally. According to the logic of defendant’s argument, once a person fills out the NASTAR registration form and [*13] accompanying Participant release, he or she is a “competitor” indefinitely, regardless of whether he or she is actually competing or training for a competition.7
7 Under defendant’s proposed at-all-times interpretation, there is no time frame for how long someone is considered to be a Participant if that word is not tied to actual racing or training. Are they deemed to be a Participant for the rest of the season? Indefinitely? What if they only participated in one race? In doing so, have they given up all rights they might otherwise have had as a recreational skier? And where does it say that in the release? Defendant’s proposed interpretation creates an ambiguity that it cannot resolve within the confines of the agreement.
Other portions of the Participant release also support the conclusion that the unambiguous language limits its scope to liability for injuries suffered during or while training for a ski or snowboard competition. The heading contains what one might reasonably construe as an identification of the parties to the release, “Marquette Mountain Ski Area, and Competition Participant.” The comma inserted between “Marquette Mountain Ski Area” and “Competition Participant” suggests that the release involves Marquette Mountain Ski Area on one side, and a “competition participant” on the other. Defendant urges this Court to ignore the “competition participant” designation, arguing that it is not part of the four corners of the agreement and is neither used nor defined in the release. However, interpreting the NASTAR release and the Participant release together makes clear that “competition participant” refers to the person participating in the NASTAR competition that defendant is hosting.8 Further, if “competition” refers only to the NASTAR [*14] event, but “participant” can have more than one referent,9 it seems reasonable that the release would focus on defining “participant” to ensure inclusion of all the word’s possible meanings. Additionally, that the participant is “a competitor at all times” harkens back to “competition participant” in the heading, again allowing one to reasonably interpret the release to pertain only to the release of liability arising from injuries associated with training for or racing in a competition.
8 The mere fact that the release uses the word “Participant” conjures up images of participation in something; it would not lead the reader to conclude that one is a Participant whenever they are on the slopes, even when they are not actually participating in anything or training for anything.
9 E.g., “participant” includes a person at least 18-years old, a participating minor, and the parents or legal guardian of as well as his or her parent or legal guardian.
Moreover, the Participant warrants in the Participant release that he or she is in good health and has left no special instructions “that have not been listed on the registration form.” Although the Participant release makes no further mention of a registration form, the NASTAR document on the reverse side is both a registration form and a release, and it contains a ‘Physically Challenged” heading where competitors may identify their physical or intellectual challenges.
Finally, defendant asserts that “alpine skiing and snowboarding” is not limited to competitive racing. This is true; “alpine skiing” may refer to downhill skiing for sport or recreation. However, interpreting the Participant release with [*15] the NASTAR release renders the phrase “alpine skiing and snowboarding in its various forms” susceptible to the interpretation that it refers specifically to the three downhill disciplines from which participants may choose to compete at a NASTAR event: alpine skiing, snowboarding, and telemarker (which combines elements of Alpine and Nordic skiing).
Given the foregoing analysis, we conclude that the trial court correctly denied defendant’s motion for summary disposition associated with the Participant release, but it erred to the extent it deemed the release language ambiguous. Assuming factual development establishes that plaintiff was not engaged in training for or competing in racing activities at the time of his injury, as plaintiff contends it will, the Participant release does not apply. Moreover, for the reasons set forth below, determination of whether the release language in plaintiff’s season pass bars his claim–which entails an assumption of the risks inherent in skiing analysis–will depend on further factual development gleaned from discovery, which has not yet begun.
B. MCL 408.342(2)
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). Summary disposition [*16] under (C)(10) is proper if the documentary evidence filed by the parties and viewed in the light most favorable to the party opposing the motion fails to show a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
The Legislature enacted SASA in 1962, and amended it in 1981. Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731, 737; 613 NW2d 383 (2000) (quotation marks and citation omitted). One of the purposes of the Legislature’s amendment was “to make the skier, rather than the ski area operator, bear the burden of damages from injuries.” Id. Thus, among the provisions in the 1981 amendment was one for the acceptance of risk by skiers, MCL 408.342(2), which provides as follows:
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snowmaking or snow-grooming equipment.
Where, as here, an injury results [*17] from a hazard not listed in the statute, Michigan’s Supreme Court has established a test to determine whether a defendant ski resort is nevertheless immune on grounds that the hazard is of the same type as those listed in the statute. Anderson v Pine Knob Ski Resort, 469 Mich 20, 24-25; 664 NW2d 756 (2003).
At issue in Anderson was whether the assumption of risk provision barred the plaintiff’s suit for injuries suffered when he collided with a timing shack during a skiing race. The Supreme Court determined that the different types of hazards listed in MCL 408.342(2) had in common “that they all inhere in the sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from suit.” Id. at 25. Thus, once a hazard is determined to be inherent to the sport of skiing, “only if [it is] unnecessary or not obvious is the ski operator liable.” Id. at 26. Applying the facts of Anderson to its legal conclusion, the Supreme Court reasoned:
There is no disputed issue of fact in this matter that in ski racing, timing, as it determines who is the winner, is necessary. Moreover, there is no dispute that for the timing equipment to function, it is necessary that it be protected from the elements. This protection was afforded by the shack that all also agree was obvious [*18] in its placement at the end of the run. We have then a hazard of the same sort as the ski towers and snow-making and grooming machines to which the statute refers us. As with the towers and equipment, this hazard inheres in the sport of skiing. The placement of the timing shack is thus a danger that skiers such as Anderson are held to have accepted as a matter of law. [Id. at 25-26.]
Accordingly, the Supreme Court concluded that the ski operator was immune from suit because the timing shack was a hazard inherent to skiing, and it was necessary and obvious.
We conclude that the trial court did not err in finding that, at this early stage of the proceedings, the record facts are simply insufficient to determine whether SASA applies to bar plaintiff’s claim. There is no dispute that the nylon rope that entangled plaintiff is a hazard not listed in MCL 408.342(2). Thus, the question is whether the placement of a nylon rope under a chair lift is inherent to skiing and, if so, whether placement of the rope in this case was obvious and necessary. For defendant to be entitled to summary disposition under MCR 2.116(C)(10), these material facts must be undisputed and defendant must be entitled to judgment as a matter of law. Quinto, 451 Mich at 362.
However, [*19] the parties dispute the material facts. And the record evidence–given that discovery has not yet begun–is not sufficient to resolve their disputes. For example, although both parties agree that the American National Standards Institute (ANSI) standard B77.1-2006 governs the construction, installation, and operation of a ski lift, they dispute whether defendant’s positioning of the rope violated the clearance requirements set forth in ANSI, and whether such violation renders defendant liable for injuries attributable to the violation. In fact, there is no record evidence as to what the rope was even for, making impossible at this point a determination of whether it was a necessary part of skiing. Plaintiff asserts that defendant’s placement of the rope “in an area directly below the chair lift” violated the ANSI standards, and that the rope was neither obvious nor necessary. Defendant contends that plaintiff’s allegation that his fall to the ground was approximately 12 feet demonstrates that defendant complied with the requirement to have a clearance of at least 8 feet between the lowest point of the carrier and the terrain. In addition, defendant characterizes the rope as a “fence,” [*20] and asserts, “fencing and its risks are intrinsic in the sport of skiing,” and further asserts that the rope/fence was absolutely needed to prevent skiers from traveling under the chair lift and being injured.” However, because there is nothing in the record evidence indicating the rope’s purpose or its location relative to the chair lift and the terrain, it is impossible to determine where the rope was placed and whether it was necessary. Defendant contends that plaintiff’s description of his fall in his affidavit demonstrates that there was at least an 8-foot clearance between the carrier, but defendant has not eliminated the possibility that the rope was too close to the carrier when it caught plaintiff’s skis, and it begs the question of why there was a rope if the minimum clearance did not require one. In short, defendant has not met its burden to submit affirmative evidence indicating that it was entitled to summary disposition on grounds that the dangers posed by the nylon rope at issue were inherent to skiing, and that they were necessary and obvious.10
Quinto, 451 Mich at 362.
10 Because we conclude that defendant’s motion for summary disposition was properly denied at this stage of the case, we need not address plaintiff’s additional argument that SASA does not bar his claim arising from the chair lift operator’s alleged failure to stop the chair lift after plaintiff became entangled in the rope.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
/s/ Michael J. Riordan
A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.
Posted: March 5, 2018 Filed under: Case Analysis, Colorado, Ski Area, Ski Area Statutes, Skiing / Snow Boarding | Tags: avalanche, Collision, Colorado Skier Safety Act, de novo review, deceleration, enlargement, exhaustive, feet, inherent dangers, Inherent Risks, lamp, man-made, Negligence per se, parked, recommendation, Respondeat Superior, right to appeal, Ski, Ski Areas, Ski Resort, ski run, Ski Safety Act, Skier, skiing, Slope, Snow, Snowmobile, Sport, statutory definition, Steamboat, Steamboat Ski Area, Terrain, Trail Leave a commentA Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.
Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Linda Schlumbrecht-Muniz, M.D.
Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT
Plaintiff Claims: negligence, negligence per se, and respondeat superior
Defendant Defenses: Colorado Skier Safety Act
Holding: for the Defendant
Year: 2015
The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.
The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.
The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.
Analysis: making sense of the law based on these facts.
The court first looked at the requirements necessary to properly plead a claim.
“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”
This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.
The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…”
Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.
Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:
Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.
The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.
Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.
The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:
…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.
In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.
I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.
The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”
The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.
Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne 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.”
Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.
Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”
The final claim was based on respondeat superior.
Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)
Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.
So Now What?
This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Legal, Risk Management & Insurance Issues facing the Outdoor Recreation Industry as, I see it.
Posted: February 21, 2018 Filed under: Challenge or Ropes Course, Editorial, Skiing / Snow Boarding, Zip Line | Tags: Challenge Courses, Lawsuits, Ropes Courses, skiing, Standards, Trade Associations, Whitewater Rafting, Zip Lines Leave a commentAs the industry grows and matures, it is attracting litigation. Additionally, the industry is marketing and attracting more people with no real knowledge of the risk and as such are more willing to sue.
The Outdoor Recreation Industry is facing a lot of new as well as the same-old problems they have in the past. Two components are creating the problems. Most of the industry does not have trade associations looking out after their member’s interests, and the industry keeps shooting itself in the foot.
Overall, here are the big issues I see the industry facing in 2018.
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There has been a substantial increase in the number of lawsuits in the industry. I used to find 20 new lawsuits a year and had another 250 stretching back into the 1930’s I could write about. I figured I could write for about ten years and cover 90% of the issues. Now I’m finding 250 a year. I’m never going to run out of lawsuits to review and write about.
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That increase seems to be proportionally to the activities that advertise their sports, especially those that advertise to families or groups.
- Zip Lines
- Ropes or Challenge Courses (These first two items have their industry associations working harder to promote litigation against them, still, then to stop it.)
- Skiing (but mostly skier v. skier collision cases) If you can’t sue the ski area, sue your friend you were skiing with or someone you never met.
- Zip Lines
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There are some industries where the number of lawsuits is dropping.
- Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
- Whitewater rafting, seems to have fewer lawsuits, although that is also probably to a maturing of the sport, there are less people getting injured.
- Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
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- The Plaintiff’s are getting more sophisticated and working harder at attacking releases. Prior to 2010 occasionally, you would see plaintiff’s attempting to have the release thrown out of the litigation. Now days you see every lawsuit attacking the release and a few of them winning. Enough plaintiffs are winning that it is encouraging other plaintiffs to sue and try to void the release they signed.
- We still have a large contingent of people attempting to try to make it harder to sue. However, this ultimately making it easy to win a lawsuit against the industry. It’s like building a terrific trench system during WWI. The trench worked perfectly unless you were overran and then your perfect trench becomes the best defense to your arguments or attacks.
- There are more product liability lawsuits, and more lawsuits based on the failure to properly understand or use a harness. Most of these are occurring in the climbing wall industry, a few in the ropes’ course industry.
- Individual sports are having no lawsuits still. However, that will soon change. As a recreational area grows in popularity a trade association or organization believing they can get good PR or increase their membership is creating standards, classes and ways to sue that never existed before. Soon you will have a way to sue a belayer while climbing on a wall or on the rock because a standard was created. The standard is the duty, that if violated by the belayer makes the belayer liable.
- California Proposition 65 is going to make life miserable for manufacturers.
- None of the trade associations are working to help the industry learn and stay away from litigation. No one announced the changes to California Proposition 65. However, that could cost companies in the recreation industry millions if not more. Threatening letters have already started to arrive in manufacturer’s mail boxes demanding money because the manufacturer did not follow or even know the rules.
This is not a complete list, but it is a lot. I’ll expand on some of these ideas through the year.
Hopefully, I’m wrong.
What do you think? Leave a comment.
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Copyright 2018 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Under California law, you assume the risk of getting hit by a toboggan being towed by a snowmobile while snowboarding.
Posted: January 15, 2018 Filed under: Assumption of the Risk, California, Case Analysis, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, Checklist, Collision, discarded, driver, Emergency, hit, Inherent Risk, instructional error, lift, patrol, patroller, Primary Assumption of Risk, Resort, risks inherent, secondary, Secondary Assumption of Risk, siren, Ski, ski area, Ski Resort, Skier, skiing, Slope, Snowboarder, snowboarding, Snowmobile, Sport, suppression, Toboggan, tower, unreasonably Leave a commentBoth sides of this case created problems for themselves, and both sides stretched their credibility. In the end, it was easy for the plaintiff to lose because of that credibility gap created by the facts and when those facts were reported.
Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204
State: California
Plaintiff: Dominique Forrester
Defendant: Sierra at Tahoe
Plaintiff Claims: General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability
Defendant Defenses: assumption of the risk
Holding: for the defendant
Year: 2017
Summary
Snowboarder loses suit claiming a toboggan being towed by a snowmobile hit him on a beginner slope. By reporting the incident after he left the resort, he created a credibility issue.
In the end, getting hit by a toboggan being towed by a snowmobile is a risk you assume when skiing in California.
Facts
The facts in a case like this are always screwy to begin with and in my opinion, screwy from both sides of the litigation. The plaintiff and a friend were snowboarding. The plaintiff was filming his friend doing jumps. After the last jump, the plaintiff snowboarded toward the bottom which was on a beginner run waiting for his friend. While waiting, he heard someone yell, and he was hit by a toboggan. He hit his head suffering injuries. The plaintiff thought he saw a ski patroller driving away with the toboggan attached to the snowmobile. The fall broke some of his equipment also.
His friend saw the incident and stated that the driver was wearing a different uniform from what the plaintiff reported. Neither of them saw lights nor a flag on the snowmobile.
The plaintiff and his friend did not report the injury but drove home. On the way home they decided the plaintiff should call Sierra. He did and got a recording machine. He then started vomiting.
The next day the plaintiff hurt all over. Eventually, he was diagnosed with a concussion, a whiplash and disc degeneration.
The plaintiff called the ski area the next day and was told there was no one for him to talk to. He was to call back Wednesday. Wednesday, he called back and filed a report.
Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile” (patroller), got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.
The same day the plaintiff contacted an attorney.
The ski area investigated the claim. No ski patrollers or terrain park employees knew of any collision with a toboggan and a snowboarder.
MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they spoke recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.
Obviously, the ski area felt that no collision or accident had occurred. The case went to trial, and the plaintiff lost because the jury found he had assumed the risk of injuries.
Normally, juries like judges are asked to assemble, to a limited extent, the facts upon which they base their decision. In this case that was not done.
As we noted earlier, this case is unusual among liability cases in general because the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be.
The plaintiff appealed the decision.
Analysis: making sense of the law based on these facts.
The court first looked into the issues surrounding the snowmobile. The defendant kept a checklist that was to be completed each day before the snowmobile was ridden. The checklist was not kept after it was completed.
Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded daily unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found.
The day in question was one of the busiest of the year. The ski area employees testified that it was so buy, it would have been impossible to drive a snowmobile through the crowd on the slope in question.
The court then reviewed the evidence of the competing expert witnesses, both of whom offered testimony that at best seems stretched and will be ignored here and was ignored a lot by the court.
The court then reviewed the defenses offered by the ski area, starting with Primary Assumption of the Risk.
“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.”
Ski areas and other operators, sponsors and instructors of recreational activities have no duty to eliminate the risk. They do have a duty not to increase the risk beyond those inherent in the sport. The court based on this analysis looked at whether a toboggan is an inherent risk of skiing and boarding and found it was.
We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.
On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.
In both examples, the court compared the collisions to collisions with stationary objects, a lift tower and a tree.
The court looked at the facts in this case and concluded the incident was a collision with a toboggan, rather than a toboggan hitting a snowboarder. I suspect the facts in the two cases the court reviewed would have different conclusions if the lift tower or the tree had hit the skiers?
To reach this conclusion, the court went back to the statements of the experts of both the plaintiff and the defendant who testified that snowmobiles were a standard practice in the sport of skiing.
There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd.
The court then also looked at Secondary Assumption of Risk.
The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). In the latter class of cases, we concluded; the issue could be resolved by applying the doctrine of comparative fault, and the plain-tiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiffs knowing and voluntary acceptance of the risk functions as a form of contributory negligence.
The court held that discussing secondary assumption of risk was not necessary in this case because the jury found the defendant was not liable because of primary assumption of the risk.
The plaintiff also argued that an evidentiary ruling should have been made in the plaintiff’s favor because the defendant failed to keep the snowmobile checklist. The rules and laws of what evidence should be kept or can be destroyed to have changed dramatically in the past twenty years, and this area of law is a hot bed of litigation and arguments.
However, the court moved around this issue because the checklist was destroyed every day. The defendant gave the plaintiff a list of the possible drivers of snowmobiles at the resort. Because the checklist was only used by the first driver, and the snowmobile could have been ridden by someone other than the driver who completed the checklist, the court found it was not critical to the case. The plaintiff request of the information had occurred after the checklist had been destroyed as was the habit for the defendant.
So Now What?
First being hit by an object being towed by a snowmobile inbounds in California is an assumed risk. This is the first case f this type I have found. Every other case where the defendant has been held not liable because of assumption of the risk at a ski area was based on the skier or boarder hitting a fixed object.
Second, credibility maybe all you have in some cases. Consequently, you never want to stretch or destroy your credibility, and you do not want your experts to do the same.
Last, if you are hurt at a resort, get help at the resort. Some of the plaintiff’s injuries might have been mitigated if treated immediately.
However, all the above issues could be crap, if the jury ruled not because they believed the plaintiff assumed the risk, but because they did not believe the plaintiff at all.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
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