Appeals Court Affirms Ruling in Assumption of Risk, Products Liability Claim

Jul 28, 2006

A California appeals court has affirmed summary judgment for a ski resort and a product manufacturer, who were each sued by a child skier after she collided with a snow-making hydrant.
The appeals court found, specifically, that the skier did not collide with the hydrant “because of its unnecessary location or orientation, but because she caught a ski edge, lost her balance and veered into the plainly visible and generally avoidable structure.”
As for the products liability claim, the appeals court agreed with the trial court that a “plainly visible and generally avoidable snowmaking hydrant is not made defective simply because a skier runs into it.”
The incident in question occurred on January 22, 2001, when then eight-year-old plaintiff Tatum Souza (Souza), an intermediate skier, lost her balance and collided with a snowmaking hydrant on the Mountain Run ski trail at defendant Squaw Valley Ski Corporation’s resort (Squaw Valley).
Souza sued Squaw Valley for negligence and for willful failure to warn, alleging that the metal snow hydrant was inadequately padded and negligently located in a commonly congested area of the ski trail. Souza also sued Squaw Valley and defendant York Snow, Inc. (the seller-distributor of the hydrant), for strict products liability for a defective product, noting that it was defectively padded and that the snow hydrant and nozzle were pointed uphill.
The court first addressed the claims for negligence and willful failure to warn, focusing heavily on Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 10 [45 Cal. Rptr. 2d 855], which involved a skier’s collision with a ski lift tower. “In that decision, we affirmed a summary judgment for the ski resort — under the doctrine of primary assumption of risk — based on this inherent risk Connelly plows the course of our analysis here.
“Similar to the plaintiff in Connelly, Souza indisputably collided with plainly visible snowmaking equipment while skiing. As noted, this risk is inherent in the sport. Consequently, the trial court properly granted summary judgment on this point, concluding that Squaw Valley, under the doctrine of primary assumption of risk, owed no duty to protect Souza against this inherent risk.”
Souza’s last cause of action alleged that the snowmaking equipment — the hydrant and nozzle – “was defective under the strict products liability doctrine because of its defectively designed location, padding and uphill direction.
“Under this doctrine, a manufacturer or other relevant entity in the stream of commerce is strictly liable in tort when a product it places on the market, ‘knowing that [the product] is to be used without inspection for defects, proves to have a defect that causes injury to a human being.’ (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 [27 Cal. Rptr. 697, 377 P.2d 897], italics added; accord, Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 249-252 [85 Cal. Rptr. 178, 466 P.2d 722].) The doctrine of primary assumption of risk does not insulate product suppliers from liability for injury for providing defective products. (Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1300 [20 Cal. Rptr. 3d 780].)
“The problem for Souza on this cause of action is that she neither used the hydrant and nozzle, nor was she a bystander to its use. (See Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 586-587 [75 Cal. Rptr. 652, 451 P.2d 84].) Souza simply ran into the product, injuring herself. It is undisputed that the hydrant/nozzle was functioning properly as snowmaking equipment, and was not being used as a product at the time Souza crashed into it. As the trial court aptly put it, a plainly visible and generally avoidable snowmaking hydrant is not made defective simply because a skier runs into it.
“Souza counters that the snowmaking equipment was defectively designed given the hydrant’s location in the middle of the run and the nozzle’s uphill direction. It is undisputed, though, that the hydrant was plainly visible, that there was sufficient room on either side of the snowmaking equipment for skiers to pass by, and that Souza simply caught a ski edge, lost her balance, veered toward the equipment and collided with it. As Squaw Valley persuasively argues, ‘[t]his scenario does not describe a product defect–it describes an inherent risk of skiing.’”
Tatum Souza v. Squaw Valley Ski Corporation et al., Ct. App. Calif., 3d App. Dist.; C049329; 138 Cal. App. 4th 262; 41 Cal. Rptr. 3d 389; 2006 Cal. App. LEXIS 472; 2006 Cal. Daily Op. Service 2821; 2006 Daily Journal DAR 4033; 4/5/06
Attorneys of Record: (for plaintiff) Bradley Paul Elley. (for defendants) Hancock Rothert & Bunshoft, Duane Morris, John E. Fagan, Paul J. Killion, Jill Haley Penwarden and Michael J. Reitzell.


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