On December 12, 2004, Camtu Dinh was a paying customer at the Sierra at Tahoe ski resort. Defendant P.K. was riding a snowboard near the prepared ski trail known as Sugar N’ Spice. Ms. Dinh and others in her family were standing in open sight on the Sugar N’ Spice trail, which is designated "easiest" in its degree of difficulty. Along that trail, uphill from the site of this accident, there were numerous "slow" signs and "slow ski/slide zone" signs advising skiers and riders to proceed slowly along that run. Defendant chose to ride his snowboard at a very high rate of speed down Sugar and Spice, he executed a jump and collided with Ms. Dinh at a very high rate of speed, knocking her to the ground, rendering her unconscious, and inflicting a traumatic brain injury. The defendant admitted in writing, both in his Collision Statement and his deposition that he was "going pretty fast." This despite the clear markings on the slope and on the map that "Sugar N’ Spice" is a Slow Ski Area, and is designated by signs at the top of the Grandview Express as the "Easiest Way Down."

P.K. was a season pass holder, at Sierra-at Tahoe. He testified that he had previously snow boarded at Sierra-at-Tahoe during the 2004-2005 season "five or six" times prior to the accident. The Pass-card Usage Detail Report for the season pass he bought on September 24, 2004, shows the days, times, and lifts at which defendant’s Sierra-at-Tahoe season pass was scanned during the 2004-2005 season prior to and on the date of the incident. It shows that defendant snow boarded at Sierra-at-Tahoe on November 24, 2004 and December 4, 2004. He rode the Grandview Express six times on the 24th, and five times on the 5th. On the day of the incident, the report shows that he took the Grandview Express three times prior to the accident. He was thus very familiar with the area of the incident, and the signage and warnings at the top of the ski area pertinent to slow skiing, and the restrictions, varying skiing/boarding abilities, and geography of the run. The trail map clearly showed that the Sugar N’ Spice run was marked "Easiest."

Four independent witnesses saw the jump made by P.K. and the resulting collision. The four gave written statements to ski patrol in their own hand, each describing P.K. as traveling "very fast."

In order to establish liability, Camtu Dinh was required to show that the insured, P. K., was snow boarding with a reckless disregard for the safety of other skiers and snow boarders. A reckless disregard is shown when "The actor does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Lackner v. North, 135 Cal.App.4th 1188, 37 Cal.Rptr.3d 863 (Cal. App. 3rd 2006). The Lackner case is right on point. There North was snowboarding, and collided at high speed into Lackner who was standing still on skis, talking to her husband. Visibility was good and there was nothing blocking North’s view of Lackner. Lackner was at a virtual standstill. North rode directly towards Lackner with increasing speed, making no effort to alter his course until he was too close to avoid hitting her. Lackner’s husband heard her bones being crushed. This evidence and her massive injuries were evidence of the tremendous force of the impact and the speed North was traveling when he hit her. The court held that North owed Lackner a duty of care, that his conduct increased the risks of the activity to a level beyond that necessary for the vigorous participation in the sport.

The holding in Lackner court follows the California doctrine first articulated in Cheong v. Antablin, 16 Cal.4th 1063, 946 P.2d 817, 68 Cal.Rptr.2d 859 (1997) which held that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant 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. Cheong v. Antablin, 16 Cal.4th at 1067.

Likewise , in Freeman v. Hale, 30 Cal.App.4th 1388, 36 Cal.Rptr.2d 418 (1994), the Court of Appeals articulated the test by holding that "conduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport." 36 Cal.App.4th at 1394, 1396, 36 Cal.Rptr.2d 418.

These three ski cases follow established California law. Reckless conduct is shown when the actor intentionally commits an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. New v. Consolidated Rock Products Co., 171 Cal.App.3d 681, 217 Cal.Rptr. 522 (Cal.App. 2 Dist. Aug 26, 1985). The New court set the test for determining if conduct rose to the level of recklessness. Plaintiff must show that defendant had: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. Id. at pp. 689-690. In order to establish constructive knowledge, it must be shown that a "reasonable person under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct." Id. at p. 690 quoting Chappell v. Palmer, 10 Cal.App.3d 71, 88 Cal.Rptr. 710, Cal.App. (5 Dist., Jul 30, 1970).

Taking the independent witness statements, it was clear that defendant intentionally snow boarded down the side bank of "Sugar and Spice," and jumped into the run colliding directly with Ms. Dinh, and Ms. Dinh’s young niece. These facts are squarely within the findings of the Court of Appeals in Lackner, supra:

While racing down an advanced run is part of the thrill of snowboarding, intentionally speeding into a flat area at the base of an advanced run where people have stopped to rest, when one is unfamiliar with the area, without looking where one is going is not an integral and unavoidable part of the sport. North’s conduct is analogous to a freeway driver who exits the freeway without slowing down or looking for other cars that are also exiting. (Emphasis added).

As a result, he crashes into one that has stopped and is waiting to turn onto a connecting street. Lackner has therefore raised a triable issue of material fact as to whether North was reckless. " Lackner, supra, 135 Cal.App.4th at 1200-1201, 37 Cal.Rptr.3d 873-874.

Following the incident, and before patrol arrived, a witness reported that P.K. left the scene. Counsel for plaintiff effectively argued that flight is an indication of guilt. Patrollers reported that Ms. Dinh was unconscious and unresponsive during the entire evacuation.

After immobilizing Ms. Dinh, and transporting her on a snow cat, Sierra-at-Tahoe transferred Ms. Dinh via helicopter to Washoe Medical Center. There, she was diagnosed with a severe closed head injury, sub-arachnoid hemorrhage-right, sub-dural hemorrhage on left causing a 5 mm shift, left to right. She also sustained a Level III liver injury. She was maintained on respiratory support in ICU for 36 hours, and was extubated after 72 hours. She was transferred to a facility closer to her family, then admitted to rehabilitation unit for fifteen days. On January 15, 2005 she was discharged with a diagnosis of traumatic brain injury and cognitive deficits secondary to the t.b.i. The total billings for the evacuation, and hospital treatment were $235,088.77.

On May 5, 2005, counsel for Ms. Dinh filed the action in California. In July, 2006, the case settled for $700,000.00.

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