By Kwangho Park, Assistant Professor at Viterbo University
In Heavenly Valley Ski Resort, plaintiff Teresa Martine (Martine) injured her knee while skiing, and a ski patrolman Gustav Horn (Horn) helped her down the mountain. However, the rescue toboggan in which she was riding lost control, and Martine sustained a head injury. She ended up accusing Heavenly Valley Limited Partnership (Heavenly) of negligence and damages which caused her additional head injury.
Heavenly moved for summary judgment, and the trial court granted the motion based on Heavenly’s argument that Martine had no evidence for the following arguments: (1) Horn had been negligent in the transportation of Martine; (2) his negligence caused an incident which resulted in Martine’s additional injuries. Furthermore, the doctrine of primary assumption of risk barred Martine’s complaint. Accordingly, the trial court entered judgment and Martine appealed. However, the trial court dismissed Martine’s arguments on appeal. Later, Martine made a new motion, but again it was denied by the Court of Appeal of the State of California, Third Appellate District. The case was closed on September 26th, 2018.
The incident happened on the Powder Bowl slope at Heavenly Mountain Resort on March 23, 2009. Because of Martine’s kneecap injury, she requested ski patrol assistance. After Horn arrived at the scene, he provided proper first-aid to Martine by applying a quick splint to her wounded left leg. He then loaded her onto a rescue toboggan (i.e., a rescue sled). He placed her ski equipment next to her in the toboggan, on her non-injured side, and began to transport her to the bottom of the mountain. During the transportation, the toboggan rolled over, and Martine’s head was consequently injured. Heavenly contends that “the rollover by external force (i.e., snowboarders emerged from the woods and obstructed the way of the sled) caused some of Martine’s equipment in the toboggan to hit her head.” However, Martine asserts that the sled tumbled due to Horn’s negligent and out of control transportation, causing the toboggan to hit a tree, which resulted in her head injury.
Martine sued Heavenly in March 2011 and alleged that the “ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree,” leading to her second injury. On November 21, 2012, Heavenly moved for summary judgment to dismiss the plaintiff’s complaint by using the doctrine of primary assumption of risk and stating a lack of evidence related to Martine’s injuries. Martine opposed the summary judgment and argued that (1) the transportation of injured skiers by a ski patrolman cannot be applied to the doctrine of primary assumption of risk; and (2) the transportation of injured skiers by a ski patrolman “engaged in a common carrier activity charged with the duty of utmost care” cannot be applied to the doctrine of primary assumption of risk. After the trial court’s decision granting Heavenly’s motion, Martine’s arguments on appeal are that: “(1) there is evidence on the motion to support the plaintiff’s claim that the ski patrolman, Horn was negligent; (2) the plaintiff’s action is not barred by the doctrine of primary assumption of risk; (3) the trial court erred in not allowing the plaintiff to amend her complaint to allege negligence and damages arising from a second injury the plaintiff incurred the same day while being taken off the mountain; and (4) the trial court erred in not granting her motion for a new trial.” The court of appeal accepted her arguments and approved a new trial.
Regarding the first argument of Martine, the court of appeal concludes that the doctrine of the primary assumption of risk becomes a defense against Martine’s claim for Heavenly’s negligence in causing Martine’s injuries. For Martine’s second argument, which is related to the doctrine of the primary assumption of risk, the trial court used various appellate court decisions: Lackner v. North, 135 Cal. App. 4th 1188, 1202 (2006); Kane v. National Ski Patrol System, Inc. 88 Cal. App. 4th 204, 214 (2001). The previous decisions that the trial court used have the same point that the activity of skiing includes certain inherent risks. Based on these cases, the trial court found that Martine voluntarily participated in the activity of skiing and voluntarily received first-aid treatment and transportation services knowing that Martine and Horn were at risk of collision with other snowboarders or skiers while they descended the mountain.
Additionally, Martine argued that since Horn acted as a common carrier during the transportation of the injured plaintiff, the primary assumption of risk cannot apply. According to Squaw Valley Ski Corp v. Superior Court, 2 Cal. App. 4th 1499, 1506 (1992), a common carrier is “everyone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages” and should “do all that human care, vigilance, and foresight reasonably can do under the circumstances” (Squaw Valley v. Superior Court at p. 1507) to avoid injuries. To decide if Heavenly is a common carrier, there are three conditions for a court to consider: whether (1) the defendant has a place of business for transportation; (2) the defendant uses advertisements of their service toward the public; (3) the defendant collects the charges for their service. These conditions, however, are not related to the transportation controlled by Horn because a ski patroller’s transportation is discretionary in nature, and there is not any compensation for the transportation of an injured party to the bottom of the mountain, unlike the ski lifts. Also, on the basis of Regents of the University California v. Superior Court, 4 Cal. 5th 607 (2018) (Regents v. SC), Martine argues that “Heavenly was liable because either it acted as a common carrier by providing the ski patrol service or it had a special relationship with Martine like a common carrier has with its passengers,” but the Regents v. SC case does not concern the duty of common carriers and is not related to the assumption of risk. For these reasons, the court of appeal concluded that the trial court appropriately ruled that Martine’s claim for negligence is barred by the doctrine of primary assumption of risk, and because of that, the court need not address Martine’s argument that “the trial court erred in excluding evidence intended to show that Martine’s rescuer’s conduct was merely negligent under either principle of ordinary negligence or application of the law of common carriers.”
Thirdly, Martine argues that “the trial court erred in not allowing her to amend her complaint to allege negligence and damages arising from a second injury she incurred the same day while being taken off the mountain.” However, the court of appeal notes that Martine had never filed a motion to amend the complaint, which is that she sustained an additional injury when she was dropped while being loaded onto the tram. However, the original allegations of the complaint are related only the incident on the ski run. For these reasons, the court of appeal rejects Martine’s attempt to expand her allegations beyond her previous complaint.
In terms of the last argument on appeals, Martine argues “the trial court erred in denying Martine’s new trial motion.” Her arguments for a new trial indicates “(1) those waived because they were not raised in the trial court and (2) those forfeited because Martine has failed to provide cogent facts and legal analysis demonstrating trial court error.” However, the court of appeal does not consider Martine’s irregular claims because she had the obligation in the trial court to “raise any issue or infirmity that might subject the ensuing judgment to attack…” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn, 163 Cal. App. 4th 550, 564 (2008)). Accordingly, Heavenly was awarded its costs on appeal.
Teresa Martine v. Heavenly Valley Limited Partnership (C076998), Filed 09/04/18.
