Mammoth Mountain Ski Area v. Graham

38 Cal.Rptr.3d 422

135 Cal.App.4th 1367

MAMMOTH MOUNTAIN SKI AREA et al., Plaintiffs and Appellants, v. David GRAHAM et al., Defendants and Respondents.

No. C048881.

Court of Appeal, Third District.

January 26, 2006.

Ronald L. Briggs, Lafayette and Steven G. Cohn for Plaintiffs and Appellants.

Molfetta & Associates and Ross W. Paulson, Glendale, for Defendants and Respondents.

NICHOLSON, J.

While snowboarding down a slope at Mammoth Mountain Ski Area (Mammoth), 17-year-old David Graham¹ was engaged in a snowball fight with his 14-year-old brother. As he was "preparing to throw a snowball" at his brother, David slammed into Liam Madigan, who was working as a ski school instructor for Mammoth. As a result of the collision, Madigan sustained injuries for which Mammoth had to provide workers' compensation benefits.

Madigan sued David and his parents, Geoffrey and Laura, for personal injury, alleging David was engaged in reckless and dangerous behavior and his parents encouraged his behavior. Mammoth sued David and Geoffrey for recovery of workers' compensation benefits it was obligated to pay Madigan.

David, Geoffrey, and Laura filed a motion for summary judgment alleging Madigan's and Mammoth's claims were barred under the doctrine of primary assumption of risk. The trial court granted the motion and entered judgment in favor of defendants. Plaintiffs appeal.

We reverse the judgment because there is a triable issue of fact whether David's conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of snowboarding.

FACTS AND PROCEDURAL BACKGROUND

In reviewing the propriety of the grant of summary judgment, we view the facts in the light most favorable to the party opposing the motion, in this case, the plaintiffs. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 633, fn. 1, 125 Cal.Rptr.2d 637.)

On April 16, 2001, Madigan was working as a ski school instructor at Mammoth teaching a class of five teenaged students and one adult. Madigan had pulled over to the side of the slope and was standing still to watch his students.

The slope was "virtually empty" apart from the student group and the Graham family. Laura was skiing behind her sons who "were engaged in a snowball fight" while snowboarding down the slope "at a fast speed." David was "looking at the younger brother and preparing to throw a snowball when he slammed directly into Liam Madigan, who was standing still at the edge of the run."

Madigan appeared unconscious for a short time but was able to ski to the bottom of the slope. Madigan's adult student, Alastair Boyd, witnessed the collision from 20 meters away and "reprimanded" David. Laura approached and acknowledged David had been "fooling around" and not watching where he was going. When Boyd "suggested" Mammoth "pull [David's] ticket," Laura became "very volatile" and told David to leave the scene. David, however, "admitted that he was in the wrong and he did not leave."

As a result of the collision, Madigan was treated for neck, back, and shoulder pain. He still suffers from migraine headaches, neck and shoulder pain, and numbness in his upper back. He is unable "to work a full schedule" and "cannot do any physical activities without being in pain." As a result of his injuries, Madigan received workers' compensation benefits from Mammoth.

In depositions taken approximately two years after the collision, David testified he had been skiing since he was six or seven years old, had attended ski school every season until he was 15 or 16 years old, and was an "intermediate" snowboarder. He had never seen anyone "exchang[ing]" snowballs while "simultaneously going downhill," believed such activity would be outside the scope of normal "skiing activity," and "guess[ed]" it would be dangerous to be "skiing" downhill while engaged in a snowball fight with his brother.

Geoffrey similarly testified he believed it was dangerous to be engaged in a snowball fight while skiing downhill. He would not have approved of his sons engaging in such activity.

STANDARD OF REVIEW

As we have observed, "[s]ummary judgment is properly granted if there is no question of fact and the moving party is entitled to judgment as a matter of law. [Citations.] We construe the moving party's papers strictly and the opposing party's papers liberally. [Citation.] The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial, whereupon the burden of persuasion shifts to the opposing party to show, by responsive statement and admissible evidence, that triable issues of fact exist. [Citations.]

"However, `from commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law. . . . There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' [Citation.] On appeal, we exercise our independent judgment to determine whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law." (Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450, 457, 21 Cal. Rptr.3d 196; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

DISCUSSION

I

Under general principles of negligence law, people have a duty to use "ordinary care" to avoid injury to others and may be held liable for negligent conduct that causes injury. (Civ. Code, § 1714, subd. (a).) A limitation to this general rule is the doctrine of "primary assumption of risk" that recognizes "in certain situations the nature of the activity at issue is such that the defendant does not owe a legal duty to the plaintiff to act with due care." (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 529, 50 Cal.Rptr.2d 671.)

To determine whether the doctrine of primary assumption of risk applies to a sports participant, the court must decide whether the injury suffered arises from an "`inherent risk'" in the sport, and whether imposing a duty might chill "vigorous participation" in the sporting event and thereby "alter fundamentally the nature of the sport." (Knight v. Jewett (1992) 3 Cal.4th 296, 316-319, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight).)

In Knight, our Supreme Court noted, "in the heat of an active sporting event . . . a participant's normal energetic conduct often includes accidentally careless behavior." (Knight, supra, 3 Cal.4th at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.) As a result, inadvertent collisions with coparticipants who carelessly or negligently cross paths are inherent risks of many sports. (Mastro v. Petrick (2001) 93 Cal.App.4th 83, 90, 112 Cal.Rptr.2d 185 [risk to skier of collision with a negligent or careless snowboarder]; Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1222-1223, 130 Cal.Rptr.2d 198 [risk to participant in an organized bike race of collision with a fellow racer who negligently moved to the side of the road]; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1263-1264, 102 Cal. Rptr.2d 813 [risk to an off-road motorcyclist of inadvertent collision with a dune buggy].)

On the other hand, the doctrine does not apply to a participant in an active sport who "intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." (Knight, supra, 3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.) For example, the doctrine of primary assumption of risk did not bar liability of a discus thrower who threw a discus into a playing field before determining the target area was clear of another participant and warning her he was about to throw. (Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 561, 566-567, 33 Cal.Rptr.2d 777.) In reversing summary judgment rendered in the trial court in favor of the defendant, the court found, unlike many sports such as football or baseball, discus throwing does not require a ball or other article be propelled towards the participants. (Id. at pp. 565-566, 33 Cal.Rptr.2d 777.) "Nothing about the inherent nature of the sport requires that one participant who has completed a throw and is retrieving his or her discus should expect the next participant to throw without looking toward the landing area." (Id. at p. 566, 33 Cal.Rptr.2d 777, fn. omitted.)

In this case, defendants contend David's behavior, "while arguably negligent," did not amount to recklessness because collisions "between snowboarders"² are "simply one of the risks inherent in the sporting activity of snowboarding." In support of their position, defendants cite O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 35 Cal.Rptr.2d 467 (O'Donoghue), a case in which the plaintiff suffered severe injuries after skiing through a gap between two groups of trees into a ravine and sued the ski resort for negligently maintaining and operating the resort. (Id. at p. 191, 35 Cal.Rptr.2d 467.) In affirming summary judgment in favor of defendant based on the doctrine of primary assumption of risk, the court concluded the ski resort had no duty to protect the plaintiff from the natural hazards and obstacles that might be encountered by departing from the ski run. (Id. at pp. 193-194, 35 Cal.Rptr.2d 467.) In reaching this conclusion, the court noted: "Skiing is an outdoor sport over mountainous terrain. Skiers can expect to encounter moguls on a ski run [citation], trees bordering a ski run [citation], snow-covered stumps [citation], and numerous other conditions or obstacles such as variations in terrain changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment,...