A California appeals court has affirmed the ruling of a lower court, finding that a plaintiff assumed the risk of injury, even though a resort employee skiing on the slopes at the same time may have caused the accident with his own “recklessness.”
“The inherent risks of injury from skiing down a snow covered mountain include accidentally careless conduct by other skiers resulting in collisions,” wrote the court. “That risk is so inherent and obvious that the skier assumed it no matter who the other skier was.”
The incident in question occurred in March 2002 at the Mammoth Mountain Ski Area. The aforementioned employee was a ski host manager, part of whose duties included skiing the slopes, checking with other ski hosts on the hill and talking to the guests. “He also was allowed to ski one or two runs during the day, and on occasion could do so with a spouse, relative or friend,” noted the appeals court. Plaintiff Karen J. Towns was skiing on a day when ski traffic was light. The employee, who was skiing with his wife down the center of the slope, was making giant slalom-type turns. Half way down the slope, he made a turn and collided with Towns, causing serious injuries to her right leg as well as a concussion and low back strain.
The plaintiff sued the employee and Mammoth, alleging that the employee was skiing in a negligent and reckless manner and that Mammoth negligently failed to train and supervise him.
The defendants moved for summary judgment, claiming the doctrine of primary assumption of risk excused them from liability for negligence and there were no facts establishing recklessness. The trial court granted summary judgment, spawning the appeal.
The plaintiff’s chief argument was that the employee should be held to a higher standard of care because he was an employee of Mammoth who at the time of the accident was skiing as part of his employment, but doing so in a manner that violated Mammoth’s employee policies. Alternatively, she claims primary assumption of risk should not apply because disputed issues of fact suggest (the employee’s) actions were reckless.
Addressing the first argument, the appeals pointed out that just because the employee was required to be on the slope did not increase the risk of injury inherent in skiing. He “was just another co-participant in a dangerous activity who could accidentally cause injury. That he was also an employee subject to an employment policy to ski safely did not increase the risk of injury inherent in an already dangerous sport.
“Moreover, to hold (the employee) and Mammoth liable here would fundamentally alter the nature of the sport. (The employee) would no longer be able to ski aggressively as the sport allows, and Mammoth would no longer hire persons to perform any type of skiing as part of their job, no matter the benefit and safety they can provide to Mammoth’s guests. This is the very outcome primary assumption of risk is designed to prevent.”
Turning to whether the employee’s skiing was “reckless and thus outside the shield of primary assumption of risk,” the appeals court again sided with the trial court. While conceding that the employee “was skiing quickly and aggressively, … these facts do not establish conduct totally outside the range of ordinary activity involved in the sport of skiing. There is no evidence (the employee) consciously and deliberately chose to ski in a manner that knowingly introduced risks of injury foreign to those inherent in the sport of skiing.
”Moreover, were we to conclude Davidson’s conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of skiing, we would call into question vigorous skiing and fundamentally alter the nature of the sport. For many, the thrill of the sport is to ski as fast and as aggressively as reasonably possible. Assigning liability to (the employee) on these facts would eliminate that aspect of the sport.”
Towns v. Herbert J. Davidson et al.; Ct. App.Calif., 3d App.Dist.; C050829; 147 Cal. App. 4th 461; 2007 Cal. App. LEXIS 145; 2007 Daily Journal DAR 1607; 2/2/07
Attorneys of record: (for plaintiff) Kelegian White & Reed, Michael R. White; Stewart Humpherys Burchett & Molin, Richard J. Molin and Edward V. Rizzuto. (for defendants) Lauria Tokunaga Gates & Linn and Mark D. Tokunaga for Defendants and Respondents.
