In most cases, you assume the risk of the risks of the sport (but not all) unless the defendant did something to increase that risk to you.

In this case, the defendant was snowboarding without a retention strap. His snowboard got away from him hitting a young girl. The California Appellate Court held this was not a risk the plaintiff assumed when she went skiing.

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

State: California

Plaintiff: Jennifer Campbell

Defendant: Eric Derylo

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 1999

Snowboarders argue they don’t have to wear retention straps because their binding keeps their snowboards attached to them. Snowboard bindings are not releasable. That is true until the Snowboarder sits down to adjust his board or boots and takes his bindings off or tears his bindings off his board.

Working at a ski area you see snowboards coming down the hill that have escaped from borders.

Most state laws also say that you cannot board a lift without a retention strap.

In this case, the plaintiff was skiing down a run at Heavenly Valley Ski Resort. She skied to an icy section, took off her skis and hiked down the icy section. She was sitting on the snow putting her skis back on when the accident occurred.

The defendant was snowboarding on the same run when he encountered the icy section. He sat down to take his snowboard off to walk down the icy section when his snowboard got away from him. The snowboard hit the plaintiff in the lower back.

California does not have a skier safety statute. El Dorado County, the county where Heavenly Valley Ski Resort is located does have a county ordinance requiring all skiers and boarders to have a safety retention strap on their skis and boards.

The skier responsibility code also used by Heavenly requires retention straps.

The plaintiff filed this lawsuit, and the defendant filed a motion for summary judgment based on assumption of the risk. The trial court granted the motion, and the plaintiff appealed.

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

The trial court’s supporting argument for granting the defendant’s motion for summary judgment was:

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

The Appellate Court first went to the deciding case in California (and relied upon in most other states) concerning assumption of the risk. Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696]. The California Supreme Court in Knight defined assumption of the risk.

…ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. .) Whether primary assumption of the risk applies depends on the nature of the sport or activity in question and the parties’ relationship to that activity. In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.”

The court then looked at California cases dealing with skiing where assumption of the risk was a basis for the defense.

…assumption of the risk applies to bar recovery for “. . . moguls on a ski run, trees bordering a ski run, snow-covered stumps, and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.”

Knight, Id, however, does not grant immunity to “all defendants participating in sporting activity.” Defendants have a duty of care not to increase the risks to another participant “over and above those inherent in the sport.”

Meaning if you increase the risk of a sport to another participant, you have eliminated the inherent risk from the sport. Inherent risks of a sport are assumed by the participants, whether or not those risks are truly inherent or identified as inherent by statute.

The court then applied a quasi but for test to determine if the actions of the defendants in cases increased the risk unnecessarily. In a baseball game, the actions of the mascot took a spectator’s attention away from the game, and he was hit with a foul bar. The game of baseball could be played without a mascot; therefore, having the mascot increased the risk to the spectators.

In a skiing case, you could ski without alcohol. Therefore, skiing drunk increases or changes the risk to the other skiers on the slope placing them at greater risk of a collision. Therefore, the inherent risk of skiing was changed when the defendant was drunk.

The court then looked at the present case as: “the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have  increased the inherent risk of injury to coparticipants from a runaway snowboard.”

The court found that both the county ordinance and the Heavenly Valley Skier Responsibility Code which was posted at the resort require the use of a retention strap. Therefore, there was a demonstrated recognition that retention straps were a necessary safety equipment to reduce the risk of runaway ski equipment.

A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury.

A test in the drunken skier case upheld this conclusion.

[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.”

When you assume the risk, those risks are the normal risks, even if they occur infrequently or rarely. More so, the risks you assume in a sport are not changed by the individual actions of one person.

The defendant also argued there was no proximate cause between this action in taking off his board and the injury the plaintiff suffered because the board could have gotten away from him at any time when he was taking it off to walk down the hill. The court looked at statements from the Defendant’s expert witness to refute that argument.

However, the declaration of plaintiff’s expert established that, used properly; the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident.

The court reversed and sent the case back to the lower court for trial because “We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport.”

So Now What?

The first obvious issue is, do not snowboard without a retention strap or a way to secure your board from getting away. Even if you take your board off to walk down the slope or work on your board/binding you need to secure the board. Skis all have breaks nowadays, and if you drop a ski on the slope, it will stop.

More importantly, this case looks at the upper limit of assumption of an inherent risk in a sport.

The inherent risks of a sport are those risks that are part and parcel of the sport or activity. Without those risks, the sport would not be what it is. Remove the inherent risks and the sport has no value to the players.

In skiing, most ski area safety statutes have broadened the definition of the inherent risk of skiing to include numerous other risks. Several other state statutes have done the same for other activities.

California has not defined the inherent risk of skiing except through case law. Consequently, each new injury a skier suffers on the slope is defined afterward by the courts as being an assumed risk or not, rather than before the injured guest starts skiing.

Here, the inherent risks of skiing were tightened in California, and I would guess most other courts would come to the same conclusion.

What do you think? Leave a comment.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of eight books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk

Outdoor Recreation Insurance, Risk Management and Law

Management, and Law.

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