Waiver Shields Ski Area in Negligence Case

Nov 6, 2009

A federal judge from the Eastern District of California has granted a ski facility’s motion for summary judgment in a case in which it was sued by the parents of a woman, who died while snowboarding at the facility and who sued on her behalf for negligence.
Central to the court’s ruling was its finding that the release the woman signed constituted a “clear and unambiguous express assumption of risk” for any injuries she might suffer.
Plaintiffs are the parents and successors in interest of a woman who died while snowboarding at defendant Alpine Meadows Ski Corporation’s (“Alpine Meadows”) ski resort. They have brought wrongful death and survivorship actions alleging premises liability, misrepresentation of risk, negligence, breach of contract and recision of contract, seeking declaratory judgment and damages.
In the instant motion, defendants Alpine Meadows and its parent corporation, defendant Powdr Corporation, have moved for summary judgment on all of plaintiffs’ causes of action. The court resolves the motion on the papers and after oral argument.
The daughter of the plaintiffs, Jessica Gregorie, was a 24-year-old, experienced snowboarder at the time of her death. On December 4, 2005, she had purchased a season pass to use the Alpine meadows Ski Area. On the same day, she signed a waiver that in pertinent part, read:
I agree to be bound by the following Conditions of Issuance, which includes but are not limited to: . . . I WILL always observe and obey posted signs. I will keep out of all areas marked “Close Area” and “Closed Area – Avalanche Danger.” If I ski or snowboard beyond the ski area boundary, I agree to assume all risks inherent in backcountry skiing and snowboarding. . . .
I understand that the sport of skiing and snowboarding can be dangerous and involve the risk of injury and death. Despite the risk involved in the sports and as consideration for being allowed to participate in the sport(s), I AGREE TO EXPRESSLY ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with my participation in the sport of skiing and snowboarding and use of the facilities of Alpine Meadows, including . . . skiing or snowboarding beyond the ski area boundary . . . . I AGREE NEVER TO SUE AND TO RELEASE FROM LIABILITY Alpine Meadows Ski Corporation, Alpine Meadows Ski Corporation, Powdr Corp. Enhanced Coverage LinkingPowdr Corp . . and their owners, employees, agents, landowners and affiliated companies (hereinafter collectively referred to as “Alpine Meadows”) for any damage, injury or death to me arising from my participation in the sports of skiing and snowboarding and my use of the facilities at Alpine Meadows regardless of cause, including the alleged negligence of Alpine Meadows. I understand that this is a RELEASE OF LIABILITY which will prevent me or my heirs from filing suit or making any claim for damages in the event of injury or death to me. . . . With the aforesaid [*4] fully understood, I nevertheless enter into this agreement freely and voluntarily and agree that it is binding upon me, my child, the user, my heirs, assigns, and legal representatives. I understand and agree that this agreement is valid forever and will be interpreted under California law . . . . THIS IS A RELEASE OF LIABILITY. READ IT AND UNDERSTAND IT BEFORE SIGNING IT.
On February 5, 2006, the decedent went snowboarding at Alpine Meadows Ski Area with a friend, Joe Gaffney. She rode a chair lift at Summit Six at least once that morning. There were two signs posted at the base of that lift, according to the court’s account. One stated “Firm Conditions Exist. A Fall Could Result With An Uncontrollable Slide” and the other stated “THIS IS NOT A BEGINNER LIFT.”
At approximately 11 a.m., Gregorie and Gaffney decided to take the High Beaver Traverse to access the “Beaver Bowl” area. Gregorie had hiked the High Beaver Traverse in the past. Beaver Bowl is rated as double-black-diamond terrain, the most difficult type of terrain on the mountain.
While hiking the traverse, Gregorie took off her snowboard. She slipped due to the icy condition of the snow, fell and slid over a rock outcropping. Both a witness who observed her fall and Gaffney testified that it appeared that Gregorie’s board slipped from her grasp and when she reached for it, she lost her balance and began sliding. Once Gregorie began to slide, she was unable to stop due to the firm snow on the ground. As she slid, she slid past a large tree that had posted on it a sign stating, “Ski Area Boundary.”
The plaintiffs sued the ski area on February 1, 2008, seeking recovery on wrongful death and survivorship theories. In their first and fourth causes of action they allege premises liability. Their second cause of action alleges misrepresentation of risk of harm relating to the traverse. Their third cause of action alleges negligence. Their fifth cause of action alleges breach of the season pass contract entered between Gregorie and Alpine Meadows. The sixth and eighth causes of action seeks rescission of that contract on the basis of fraud in the inducement. The seventh cause of action seeks declaratory relief regarding Gregorie’s and the defendant’s respective rights and duties under the season pass contract. In addition to declaratory relief, the plaintiffs seek damages, punitive damages, and costs.
Regarding the first claim, the court granted summary judgment after finding that the plaintiffs have not tendered adequate evidence from which alter ego or agency liability could be imposed.
For purposes of its analysis, the court combined the plaintiffs’ first, second, third, fourth and seventh causes of action.
It began by noting that “the risks inherent in snow skiing have been well catalogued and recognized by the courts. … As a downhill snow sport, snowboarding shares these same risks. Lackner v. North, 135 Cal. App. 4th 1188, 1202, 37 Cal. Rptr. 3d 863 (2006).”
It then went on to address the “problem” with the plaintiffs’ evidence. “The location of the boundary in this case is immaterial because, whether Gregorie fell within or outside of the boundary, sliding beyond the boundary and impacting objects is an inherent risk of snowboarding. Moreover, to the extent that the plaintiffs have tendered sufficient evidence from which a jury could find that the defendants increased the risk to Gregorie by failing to properly mark the boundary or maintain the traverse, liability is precluded by virtue of the decedent’s express assumption of risk.”
The court next turned to the enforceability of the waiver.
“Even if Alpine was negligent, the release … clearly, unambiguously and expressly covers Alpine’s negligence, which would including not closing the traverse or failing to provide adequate warning of the snow conditions. The release is also more specific than the release enforced in Buchan v. U.S. Cycling Federation, 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 (1991). Here, the release includes specific risks and consequences of skiing and snowboarding, injury and death. Although not specifically included in the release, it is apparent that a skier or snowboarder while hiking on a steep slope could slip, fall and experience an uncontrollable slide resulting in a collision with a number of natural objects. Slipping, falling, and striking natural objects on a mountain are inherent risks of snowboarding, just as colliding with other racers is inherent in cycling. See Buchan, 227 Cal. App. 3d at 148; see also Lackner v. North, 135 Cal. App. 4th 1188, 1202, 37 Cal. Rptr. 3d 863 (2006) (falling and colliding with objects is a risk inherent in skiing). The release made Gregorie aware that skiing and snowboarding at Alpine posed the risk of injury and death. When a releasor has expressly released a defendant from liability for any future act of negligence, “the law imposes no requirement that [the releasor] have had a specific knowledge of the particular risk which resulted in [the death].” Madison, 203 Cal. App. 3d at 601.
“Accordingly, the entire waiver taken as a whole clearly and unambiguously makes clear to a layperson untrained in the law that its effect was to release claims for personal injuries as a result Alpine’s negligent acts and for any injuries arising from the uses of the facilities. Therefore the release and waiver of liability are valid and enforceable. Defendants’ motion for summary judgment is granted as to the plaintiff’s first, second, third, fourth and seventh causes of action.”
Daniel Gregorie et al. v. Alpine Meadows Ski Corporation; E.D. Calif.; NO. CIV. S-08-259 LKK/DAD; 8/7/09
Attorneys of record: (for plaintiffs) Alisha M. Louie, Melvin D. Honowitz, LEAD ATTORNEYS, Constance J. Yu, Sideman and Bancroft, LLP, San Francisco, CA. (for defendants) Jill Haley Penwarden, John E. Fagan, Michael L. Reitzell, Duane Morris LLP, Truckee, CA.


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