By James H. “Jim” Moss
Appellate court decision finds release stopped claims and plaintiff assumed the risk of hitting a stopped snowmobile on the slope.
A season pass holder at Mammoth ski area was injured when he hit a snowmobile that was parked on the slopes. The California appellate court held the season pass’s release stopped the plaintiff’s claims and also found that a snowmobile on the slopes is an inherent risk of skiing.
Mammoth is a ski resort in Mammoth Lakes, California. As is common in the ski industry, the resort uses snowmobiles in its operations and has taken certain steps to reduce the chance of collisions with guests. Mammoth has, for instance, created a snowmobile training program and developed training materials that, among other things, require its snowmobile drivers to limit their speed in congested areas, to ride on the side of the run-in order to provide the best visibility, to yield to guests, and to use flags and headlights when driving in public areas. Additionally, the resort posted signs at the top of ski lifts warning that snowmobiles “may be encountered at any time,” included the same warning in its trail map, and, in its liability waiver for season-pass holders, required season-pass holders to acknowledge that “Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”
Mammoth also established preferred routes for its snowmobile drivers with the intent to limit collision risks. One of these routes formerly covered two ski runs called St. Moritz and Stump Alley; the latter is a larger, popular run that ends at the base of the resort, while St. Moritz is a smaller run that branches off Stump Alley. To provide a rough visualization of these runs, think of a rotated lowercase y-as in, A-with the longer line representing Stump Alley and the shorter line representing St. Moritz. For the designated route covering these runs, snowmobile drivers were instructed to stay to their left when going up St. Moritz; then, where St. Moritz meets Stump Alley, to make a slight right turn onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and after passing this area, to travel across Stump Alley, staying to their left when going up Stump Alley. A map of Mammoth’s preferred snowmobile routes shows the St. Moritz-to-Stump Alley route. As depicted in the map, the route crosses Stump Alley at an upward diagonal from right to left and then goes up the left of Stump Alley. Mammoth began developing this route at some time before 1989 and used it until late 2016.
In early 2016, one of Mammoth’s lift maintenance employees, Joshua Peters, drove his snowmobile up St. Moritz on his way to a lift maintenance station. Peters, who had completed Mammoth’s snowmobile safety training, drove up St. Moritz at about 15 miles per hour, slowed to about five miles per hour before exiting St. Moritz, and then continued at this speed on Stump Alley as he looked to cut across the run. Valter, an expert skier, was skiing down the left side of Stump Alley at the same time and began decelerating from about 30 miles per hour to make a left turn onto St. Moritz. Peters said he saw Valter from a distance of about 80 to 120 feet, slowed further, and then stopped. But Valter never saw Peters. Valter made three or four controlled turns after Peters first saw him, and he then collided with Peters’s snowmobile on Stump Alley. Valter suffered significant injuries as a result of the collision.
Two other witnesses saw the accident. One was another Mammoth employee who was driving a snowmobile behind Peters. Afterward, he told an officer that Peters had stopped and that Valter was looking over his left shoulder just before the collision. However, Valter told the same officer that he never looked over his shoulder. Another witness who was riding on a ski lift saw the accident from above. In a written statement, this witness said the snowmobile was driving slowly up Stump Alley diagonally from “skier [‘]s left to right,” as in, from the left side to the right side of the run from the perspective of a skier going downhill. The witness added that the snowmobile had slowed almost to a stop at the time of impact. But, the witness wrote, it was “almost as though [the] skier never saw [the] snow mobile”; the skier traveled in a “controlled line, but it was directly into [the] snow mobile.”
Several photographs taken immediately after the collision show the snowmobile’s appearance and position at the time of the accident. The snowmobile is dark blue and flies an orange flag at its back. It was not obstructed by any apparent obstacles. Another photograph taken after the accident, which the parties marked up during Peters’s deposition, shows Peters’s path from St. Moritz to Stump Alley. Both parties accept that the photograph accurately depicts his path. The photograph (together with other photographs of the scene) showed that Peters entered Stump Alley from the far left of St. Moritz near a sign describing different runs and then headed up Stump Alley at a sharp diagonal. According to a diagram that Mammoth personnel made after the accident, the distance between this sign and Peters’s snowmobile at the place of the collision was 44 feet.
Notably, before the accident, and as a condition of holding a season pass, Valter signed a liability waiver. In the waiver, Valter agreed he “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles,” “agree[d] that these risks and dangers are necessary to the sports of Skiing and Snowboarding,” “AGREE[D] TO EXPRESSLY ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with [his] participation in the SPORTS,” and “AGREE[D] NEVER TO SUE, AND TO RELEASE FROM LIABILITY, Mammoth . . . for any . . . injury . . . which arises in whole or in part out of [his] . . . participation in the SPORTS . . ., including without limitation those claims based on MAMMOTH’S alleged or actual NEGLIGENCE ….”
Analysis: Making sense of the law based on these facts
It was undisputed that the plaintiff was a season pass holder at Mammoth Mountain ski area. In obtaining that season pass, the plaintiff also signed the preceding release. The court found,
As a condition of receiving a season pass for Mammoth, Valter expressly agreed to assume the risk of Mammoth’s negligence. In the context of sports, including for skiing, courts have consistently found these types of agreements are valid when they excuse liability for ordinary negligence-that is, for “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”
Furthermore, releases in California stop all claims for ordinary or simple negligence. In order to defeat a release, the plaintiff must prove that the defendant was grossly negligent. The court continued,
Valter’s signing of the liability waiver bars him from suing Mammoth for ordinary negligence, which Valter does not dispute. We further conclude Valter cannot show Mammoth’s conduct rose to the level of gross negligence. The undisputed facts show, among other things, that snowmobiles are common at ski resorts, that Mammoth posted signs warning guests that snowmobiles could be encountered at any time, that Valter expressly acknowledged the risk of colliding with a snowmobile and agreed to assume the risk of Mammoth’s negligence, that Mammoth trained Peters on snowmobile safety, that Peters drove his snowmobile slowly and stopped or almost stopped before the collision, that his snowmobile flew an orange flag, and that, in the photographs taken immediately after the accident, no obstacles are shown obstructing a downhill skier’s ability to see Peters and his snowmobile in the area of the collision.
Despite, the plaintiff’s attempts to argue that several of the actions that Mammoth did were gross negligence, the court did not accept any of those arguments.
Although Valter argues Mammoth’s conduct here could be found grossly negligent for several reasons, we find none of his arguments were persuasive. He first contends Mammoth could be found grossly negligent because the presence of snowmobiles is not an inherent part of skiing. But whether or not the presence of snowmobiles is an inherent part of skiing, we are at least satisfied that no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles. The undisputed facts, again, show that snowmobiles are common at ski resorts. Mammoth’s former health and safety manager, for instance, explained that in the ski industry, snowmobiles are used ‘on a daily basis for lift maintenance, lift operations, and for ski patrol emergency transport.’ Valter, who said he had skied about a thousand days in his lifetime on various mountains, never alleged differently. He instead acknowledged he commonly saw snowmobiles on ski runs that were open to the public. The undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety. Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response. Again, Valter never alleged differently and, on appeal, states he does not disagree ‘that snowmobiles are very useful and efficient in the operation of a ski resort.’ On these undisputed facts, we cannot say that Mammoth’s decision to use snowmobiles evidenced “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct,’” even though, as Valter asserts elsewhere in his brief, snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers.
In the past, the plaintiff simply had to claim gross negligence, and the courts would throw out the release and proceed to trial. Nowadays, the courts are tired of every claim arguing gross negligence and taking it upon themselves to find the facts the plaintiff is arguing cannot rise to the level of gross negligence.
On top of that, the arguments set forth by the court can now be used by other defendants to prove they were not grossly negligent. Those arguments are:
• The presence of snowmobiles is not an inherent part of skiing.
• No reasonable person could find Mammoth grossly negligent simply because it
• Undisputed facts, again, show that snowmobiles are common at ski resorts.
• Undisputed facts, moreover, show that a ski resort’s use of snowmobiles can
• Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response.
The next section of the decision is arguably where the plaintiff stretched the facts too far. The plaintiff argued that Mammoth never told skiers where the designated snowmobile routes were. However, the court found the routes were not as important as all the warnings that Mammoth put in front of its guests about snowmobiles.
Second, Valter suggests Mammoth could be found grossly negligent because it never shared its designated snowmobile routes with its guests. But Mammoth repeatedly cautioned guests about snowmobiles and explained they could be encountered at any time. Signs at the top of the lifts at Mammoth, for instance, explain that snowmobiles “may be encountered at any time.” The Mammoth trail map says the same: Snowmobiles “may be encountered at any time.” And the liability waiver that Valter signed further warned about the presence of snowmobiles and the risk of collisions, stating that Valter “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”
And failing to share the routes with the skiers at Mammoth did not rise to the level of gross negligence. The court concluded,
[N]o reasonable person could find Mammoth grossly negligent simply because it failed to share these maps—a practice that no ski resort, as far as Valter has shown, has adopted.
The arguments then descended into arguments about distance. Questions of whether the snowmobile, which was stopped at the time, off the route, was unknown to the plaintiff and if so, by how many inches or yards.
Third, Valter argues Mammoth could be found grossly negligent because Peters failed to follow Mammoth’s preferred snowmobile route for St. Moritz. According to the preferred snowmobile route, again, Peters should have stayed to his left when going up St. Moritz; then, where St. Moritz meets Stump Alley, made a slight right onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, traveled across Stump Alley and up the left side of Stump Alley. But according to Valter, Peters instead “drove up near the middle of St. Moritz” (rather than the left), “made a looping right turn near the top of St. Moritz at its intersection with Stump Alley” (rather than a slight right), and “intend[ed] to drive up the right side of Stump Alley” (rather than drive across Stump Alley and up the left side of the run). As a result, Valter asserts, Peters was “several yards from where he was supposed to be before trying to cross Stump Alley” at the time of the accident.
However, the court found this argument did not matter because the plaintiff could not show his statements were valid. There was nothing in the evidence that showed the plaintiff’s allegations were true. The court noted, “But much of Valter’s alleged facts lack evidentiary support.” Then, the court held that even if the snowmobile driver was “off route” it did not matter because the plaintiff could not prove that being off route made any difference.
The plaintiff argued Mammoth was grossly negligent for designating the snowmobile route in question. The court, again, cut through the plaintiff’s argument,
He reasons that Mammoth should have chosen a different route because it knew Stump Alley was a popular run, knew skiers “coming down Stump Alley ‘hug’ the tree line on the left in order to turn left onto St. Moritz,” acknowledged that these trees would have grown substantially since the snowmobile routes were initially established around 1989, knew snowmobiles on St. Moritz pose a potential danger to skiers, knew other routes were available, and never conducted any safety, feasibility, or visibility studies for the route. He adds that Mammoth’s new snowmobile routes no longer use St. Moritz (though he says the “change was not made in response to Valter’s injury”) and that Mammoth now uses snowmobile corridors that are marked off with stakes and ropes.
The court rejected that argument on two different grounds. The first was the ski area still inundated its guests with warnings about snowmobiles being on the runs. The second was the plaintiff could not prove that selecting that run for a snowmobile route was done incorrectly, without planning or in any way increased the risk to skiers.
Finally, the plaintiff’s argument was shot down because the stretches in the facts went too far for the court. Simply put, the court wrote, “But Valter’s allegations cannot be squared with the undisputed facts.”
First, in his own telling, he was traveling at a speed less than 30 miles per hour, as he was decelerating from 30 miles per hour at the time of the collision. And second, according to Peters’ undisputed testimony, Valter managed to make three or four controlled turns after Peters saw him—demonstrating that the issue is more that Valter failed to notice Peters than that he lacked time to avoid Peters. At any rate, because Valter raised this argument for the first time in his reply brief, and without good cause, we find the argument forfeited.
The court said the arguments made by the plaintiff, individually or as a group, failed to show any gross negligence on the part of the defendant ski area.
So Now What?
The definition of inherent, is changing either by statute or by law. California has no ski area safety statute. However, the courts have expanded the definition of inherent risk to include snowcats, Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344
and now snowmobiles. California now joins Colorado in finding a parked snowmobile is an inherent risk of skiing, see A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.
Inherent risk used to be those risks that were part and parcel of the activity, without the activity of man. Now, in skiing, at least by statute or law, the inherent risks of skiing have expanded. Making the decision to go skiing or boarding, participants and possibly, especially season-pass holders, assume the risk of hitting something on the slopes that is either natural or manmade.
Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023); California Court of Appeals, Third District, Mono, 2023
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us