Court Denies Summary Judgment After Finding Resort May Have Heightened Risk

Jun 19, 2009

A motion for summary judgment brought by a ski resort has been denied by a federal judge in the Eastern District of California, who found that the resort may have heightened the risk for skiers by altering the terrain and not sufficiently informing them of the risk.
The suit was brought by Kirk Tuey, who was seeking damages for severe traumatic brain injury that was suffered in a fall while skiing at the Mammoth Mountain Ski Area in Mammoth, California.
The plaintiff and his co-worker, Rahul Madhusudanan, were skiing at Mammoth Ski Park on February 17, 2006. The weather was very foggy that morning. The skiers took the Thunderbound Express Chairlift to the top of the Upbound Main Terrain Park (UMTP). UMTP is a ski area containing natural and man-made features such as jumps, rails, boxes, and half pipes. At the entrance to the UMTP there were three warning signs notifying skiers of the terrain features within the park. Neither of the skiers stopped to read the warning signs. The skiers were planning on cutting through the UMTP to get to a different ski trail. Madhusudanan testified that he did not see any sign notifying skiers of the half pipe entrance and did not see it until he had already skied off the edge. Mammoth provided pictures of the half pipe which showed signs, bamboo poles, rope, and flags around the half pipe. After entering the half pipe, the plaintiff fell approximately 15-18 feet. The plaintiff’s suit alleged that he suffered severe traumatic brain injury including permanent brain damage. The defendant’s motion for summary judgment was based on the affirmative defense that the plaintiff’s claim was barred according to the doctrine of primary assumption of risk.
The court looked to the California Supreme Court’s description of the principles of assumption of risk. In Knight v. Jewett, the court said that in order to know if a plaintiff assumed the risk of a particular activity, the court must determine if the defendant owed a duty to the plaintiff. The Knight court held that some dangers are inherent and integral to participation in the sport itself and that the court must take these integral dangers into account when determining whether there is a duty. The court said that a defendant owes no duty to eliminate or protect plaintiffs from the risk of those harms arising from these inherent dangers of a sport. The doctrine of assumption of risk would completely bar a plaintiff’s recovery for injuries arising out of those inherent dangers. Defendants do have an affirmative legal duty to eliminate or protect plaintiffs from risks that are not inherent, such as dangers posed by the defendant’s negligence. Another factor in the determination of duty is the relationship between the parties. The court cited Luna v. Vela which stated that, “an organizer of the activity or someone who has provided or maintained the facilities and equipment used” will have a duty to sports participants to not increase the inherent dangers of a sport. The question of duty is a question of law for the court to decide.
The court determined that the defendant had not shown that the hazards in the UMTP are hazards that the plaintiff assumed the risk. The California rule is that, in ski injury cases, “the defendant is held not to have increased the risk to the plaintiff so as to create a heightened duty of care if the man-made structure or object erected or maintained by the defendant is necessary or fundamental to the sport.” The rule contains an exception to the heightened duty if a manmade structure is obvious and visible or the skier has notice of it. The court held that the alterations made to the terrain were not of the type that would exclude the defendant from a heightened duty because they were not necessary to the sport of skiing. The court held the “defendant has not established as a matter of law that its warnings at the entrance to and throughout the terrain park were sufficient such that plaintiff assumed the terrain park’s risks as a matter of law.” The court noted that the fact that the defendant did not present evidence about the signs and their location.
The defendant argued that the adequacy of the signs was irrelevant because the plaintiff knowingly entered the UMTP. The court disagreed with this argument. There was no evidence that the plaintiff stopped to read the signs and although the plaintiff admitted that he was an “advanced skier”, there was no evidence that he had ever encountered terrain parks. The court stated, “in cases where a plaintiff has been held to have assumed a risk based on his own actual knowledge of the hazard at issue, there has been evidence establishing such knowledge.”
Kirk Tuey v. Mammoth Mountain Ski Area et al.; E.D. Cal.; NO. CIV. S-07-2442 LKK/GGH, 2009 U.S. Dist. LEXIS 28482; 4/6/09
Attorneys of Record: (for plaintiff) Peter I. Bersin, LEAD ATTORNEY, Law Office of Peter I Bersin, Beverly Hills, CA; Philip Howard Dunn, Dunn & Associates, Santa Monica, CA. (for defendants) Jill Haley Penwarden, LEAD ATTORNEY, John E. Fagan, Michael L. Reitzell, Duane Morris LLP, Truckee, CA; Thomas P. Aicher, PHV, LEAD ATTORNEY, PRO HAC VICE, Cleary, Shahi & Aicher, P.C., Rutland, VT.
This summary was written by University of Texas Law School student Steven Stamps.


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