Merely Misjudging the Movements of Another Skier Does Not Equal Liability

Oct 27, 2006

Just because a skier rushed down the slope and misjudged the movements of another skier and then collided with that skier does not mean the first skier is liable for any damages associated with the accident, a federal judge in the Eastern District of California has ruled.
Rather, the assumption of risk doctrine applies in such instances, since collisions are an inherent part of the sport of skiing.
On February 11, 2005, plaintiff Deirdre Price and defendant Greg Moody were skiing at the Alpine Meadows Ski Resort. Price was a beginning skier working her way down an intermediate trail at the resort. Moody, meanwhile, was on the same trail, further up the slope. Moody saw Price as he descended the trail and believed that she was following a pattern that she would maintain. When he was about 10 feet from Price, however, she changed her pattern and the two skiers collided.
Price sued and Moody moved to dismiss.
“Under the primary assumption of the risk doctrine, a sport participant has no duty to protect a co-participant from a particular risk when the risk is ‘inherent in the sport.’ Cheong v. Antablin, 16 Cal.4th 1063, 1068, 68 Cal. Rptr. 2d 859, 946 P.2d 817 (1997),” wrote the court in its analysis. “A risk is inherent if it cannot be eliminated without ‘fundamentally altering the nature of’ or ‘chilling vigorous participation in’ the sport. Knight v. Jewett, 3 Cal.4th 296, 317-19, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The Knight court recognized that ‘in the heat of an active sporting event . . . a participant’s normal energetic conduct often includes accidentally careless behavior.’ Id. at 318. Therefore, a participant is not liable ‘for ordinary careless conduct.’ Cheong, 16 Cal.4th at 1068 (citing Knight, 3 Cal.4th at 318).”
The court did note, however, that participants still “’have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ Lackner v. North, 135 Cal.App.4th 1188, 1199, 37 Cal. Rptr. 3d 863 (2006) (citing Knight, 3 Cal.4th at 315-16). Thus, a participant is liable ‘if [he] intentionally injures another . . . or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ Id. (citing Knight, 3 Cal.4th at 320).”
Examples of this can be found in Freeman v. Hale, 30 Cal.App.4th 1388, 1395, 36 Cal. Rptr. 2d 418 (1994), where “the defendant was found liable for colliding with plaintiff when he had been consuming alcohol before and while skiing” and Lackner, where “the court denied summary judgment to a snowboarder who collided with a skier because the snowboarder: (1) was racing extremely fast with high school teammates down an unfamiliar, advanced run; (2) was preoccupied with looking back at his teammates to check their relative positions; and (3) hit a skier who was stopped on a flat area used as a rest stop.
“The facts here are not comparable to those cases finding a sufficient allegation of reckless conduct to permit liability for a collision between skiers. Price does not allege that Moody intentionally sought to collide with her. She does not allege that he was doing anything other than trying to get down the slope quickly without making sufficient allowance for her. She does not allege that he was racing, inebriated, throwing snowballs, or skiing without looking where he was headed.
“Rather, she merely claims that Moody was a good skier, that he was overtaking her and knew that she could not see him, that he was skiing quickly (although not extremely so), that he badly misjudged how she was skiing, and that it was his responsibility as the overtaking skier to avoid a collision. This does not amount to the kind of reckless behavior that is outside the normal risks of skiing with other skiers who cause collisions through misjudgments or lack of care.”
Deirdre Price v. Greg Moody; E.D.Cal.; No. Civ. 05-1127 DFL KJM; 2006 U.S. Dist. LEXIS 43889; 6/28/06
Attorneys of Record: (for plaintiff) Ronald H Wecht of Walkup Melodia Kelly Wecht & Schoenberger, San Francisco, CA. (for defendant): Domenic D. Spinelli, Ross R. Nott, Laplante & Spinelli, Sacramento, CA.


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