Free Case Review

Call Now

No ski safety statute. Cal. Civ. Code § 846 exculpates property owners from liability in cases involving non-commercial recreational use of their land, excepting "willful and wanton" conduct. The doctrine of primary assumption of risk and "inherent danger" has not been codified at the state level (some counties have relevant ordinances), but exists in case law. Tramways are governed by Cal. Labor Code §§ 7340 to 7357, and their personnel subject to Division of Labor regulation. Cal. Public Utilities Code § 212(c) excludes ski lifts from the definition of "common carrier."


Woolington v. Hall, H036257 California Court of Appeals(2012)
Amy Woolington, age 21, tragically died in an accident at a ski resort in Utah that occurred while she was sledding at night with a group of college friends. The group was staying at a nearby house owned by the father of respondent Christopher Hall, age 23, one of the college friends who participated in the nighttime sledding.  Her parents filed a wrongful death and survivor action against Christopher, who subsequently brought a summary judgment motion on the ground that their claims were barred by the affirmative defense of assumption of risk. The trial court granted the motion, finding as a matter of law that Christopher had not increased the inherent risks of the sledding activity and therefore the doctrine of assumption of risk was a complete bar.  The appellants contend that the trial court erred in determining that assumption of risk was a complete defense because there is a factual dispute as to whether Christopher increased the inherent risks of sledding by, among other things, representing to Amy that it was safe to sled at night, trespassing on an unlighted ski run, and providing a sled and alcohol to her.  The judgment was affirmed.

Fisher v. Sierra Summit, Inc., F058735, California Court of Appeals (2011)
Plaintiff John G. Fisher was severely injured when he crashed while skiing at the Sierra Summit ski resort. He sued defendants Sierra Summit, Inc., and Snow Summit Ski Corporation, contending he crashed because he skied into a hole in the snow that was present because of their negligence. He also claimed that ski patrol personnel at Sierra Summit contributed to his injuries by providing first aid negligently.

The trial court granted defendants’ motion for summary judgment. The court ruled that Fisher’s claim that he was injured by a dangerous condition negligently allowed to exist on the property was barred by a release he signed when he rented his skis, a release in which he expressly assumed the risk of being injured while skiing. It ruled that his claim of negligent first aid was barred by Health and Safety Code section 1799.102, [1] a Good Samaritan statute that immunizes from tort liability those who, at the scene of an emergency, render emergency care in good faith and not for compensation.  The judgment was affirmed.

Parco v. Snow Summit, Inc., 2009-CA-0522.054 (2009)
Plaintiff was a 23-year-old snowboarding enthusiast with several years of experience. In connection with obtaining her season pass, plaintiff executed a release in November 2004.    She and a second snowboarder collided midair. The other person’s snowboard sliced plaintiff’s neck causing significant injuries. The trial court granted defendant’s motion for summary judgment based on the doctrine of express assumption of risk. Plaintiff produced no evidence from which to conclude that it was unreasonable for defendant to design and operate the jumps as it did. While defendant’s conduct was arguably negligent, the court decided its conduct did not satisfy the criteria for gross negligence or reckless misconduct.  Plaintiff argued that because the two jumps were near one another and used the same area for landing, the design caused the two snowboarders to jump simultaneously and collide midair. But, obviously, had one waited for the other to go first, or had their jumps formed different trajectories, allowing them to land in slightly different places, the collision would not have occurred. Affirmed.

Goodfield v. Sugar Bowl Corp., 2008-CA-0214.020 (2008)
January 8, 2003, Lori Goodfield was injured when defendant Matthew Greene recklessly failed to yield to her on the trail on which she was skiing, leading to a collision which propelled her 25 feet in the air and caused her to suffer severe head injuries. Goodfield filed claims against defendant Sugar Bowl Corporation, the ski resort where her accident occurred. Goodfield  alleged that the resort’s negligent design and construction were partly responsible for her injuries. Defendant moved for summary judgment and the trial court granted the motion and entered judgment for defendant. On appeal, affirmed.

Ayres v. Mountain High Holdings, 2008-CA-1211.030 (2008)
On January 13, 2005, Ayres and four friends went to Mountain High in Wrightwood, California to enjoy a day of snowboarding. Ayres was an intermediate level snowboarder and slipped on an icy slope and slid down Olympic Bowl run sustaining severe injuries. Mountain High Holdings moved for summary and the court granted summary judgment in favor of Mountain High Holdings on the basis the assumption of the risk doctrine barred Ayres’ claims.

Towns v. Davidson, 54 Cal.Rptr.3d 568, 147 Cal.App.4th 461 (2007)
In March 2002, defendant Herbert J. Davidson was employed by defendant Mammoth Mountain Ski Area as a ski host manager. Part of his job duties included skiing the slopes, checking with other ski hosts on the hill, and talking to the guests. He also was allowed to ski one or two runs during the day, and on occasion could do so with a spouse, relative or friend. At those times, he would still be on duty as a ski host and would be wearing a Mammoth uniform. Mammoth’s policy manual for hosts, the Host Manual, required him to "always ski as a Host" when in uniform, and "to look out for the safety of our fellow employees and guests on and off the Hill."

On March 4, 2002, plaintiff Karen Towns was skiing down Stump Alley, a ski run at Mammoth. Davidson was also on the run and collided with Towns. She suffered serious injuries to her right leg as well as a concussion and low back strain. She sued both Davidson and Mammoth. She alleged Davidson was skiing in a negligent and reckless manner. She also alleged Mammoth negligently failed to train and supervise Davidson. The trial court granted summary judgment on the basis of assumption of risk.  The court found that the fact of Davidson’s employment was irrelevant. Whether or not Davidson was employed by Mammoth, the inherent risks of injury from skiing down a snow covered mountain include accidentally careless conduct by other skiers resulting in collisions. This risk is so inherent and obvious it goes without saying plaintiff assumed that risk no matter who the other skiers may be.  Affirmed.

City of Santa Barbara v. Superior Court, 161 P.3d 1095 (2007)
The California Supreme Court, considering a waiver by a parent on behalf of a minor child who drowned while participating in a city recreation program for developmentally disabled children, concluded that a parent may not waive the rights of his or her child.  The Court noted that the majority rule nationwide is to follow Hawkins v. Peart, 37 P.3d 1062 (Utah 2002) (holding parents may not waive the rights of their children, nor may they be required to indemnify others against negligence claims of their children).  However, the court did note a minority of states which do allow parents to waive the rights of their children.  Those states are Massachusetts, Ohio, and Colorado.  See Sharon v. City of Newton, 769 N.E.2d 738, 744-48 (Mass. 2002); Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 204-07 (Ohio 1998); Colo. Rev. Stat.§13-22-107(3).

The Court also explained national trends in the area of pre-injury release waivers generally.  California, along with the majority of states, follows the standard articulated in Tunkl v. Regents of the University of California, 383 P.2d 441, 445-6 (Cal. 1963).  That case lays out six factors which should be balanced to determine whether the waiver is enforceable.  A waiver is not enforceable if: (1) the activity is the type generally thought suitable for public regulation, (2) the service provided by the person seeking indemnity is of great public importance (3) the activity is generally open to the public (4) the party agreeing to waiver lacks any significant bargaining power (5) the lack of bargaining power results in the use of adhesion contract with no opportunity to purchase additional insurance and (6) as a result of the transaction or activity, the person agreeing to the waiver is placed under the control of the other party.  Id.

While the Tunkl standard is the majority rule, the Court recognized that the public policy arguments against allowing a party to waive claims for the negligence of another are so strong that a few states will never enforce a pre-injury negligence waiver.  Those states are Vermont, Virginia, and New York, all of which have a ski industry.  See Spencer v. Killington, Ltd., 702 A.2d 35, 37-38 (Vt. 1997); Hiett v. Lake Barcroft Community Assn, 418 S.E.2d 894, 895-97 (Va. 1992); 74 N.Y.St. 27, 28.

Souza v. Squaw Valley Ski Corp., 138 Cal.App.4th 262 (2006)
On January 22, 2001, Tatum Souza, an intermediate skier, collided with a snowmaking hydrant on the Mountain Trail Run, at Squaw Valley Resort in Fresno County, California.

Souza injured her mouth after colliding with the apparatus. Souza filed suit claiming negligence and willful failure to warn. Souza alleged that the “metal snow hydrant was inadequately padded and negligently located in a commonly congested area of the ski trail.” Squaw Valley filed a Motion for Summary Judgment claiming that recovery was barred under the doctrine of primary assumption of risk, because colliding with an object is an inherent risk of skiing. The court granted Summary Judgment, finding that colliding with a “plainly visible object” is an inherent risk of skiing and that Squaw Valley, under the doctrine of primary assumption of risk, owed no duty to protect Souza from the inherent risk. The court found that Souza crashed into the hydrant because she lost control of her skis, not because of the location of the hydrant. Affirmed – Ski resorts have no duty to warn or protect skiers from plainly visible objects necessarily placed on ski trails.

Mammoth Mountain Ski Area v. Graham, 135 Cal.App.4th 1367 (2006)
David Graham, engaged in a snowball fight with his brother and looking uphill, collided with Liam Madigan, a snowboard instructor, while Madigan taught an intermediate snowboard lesson. Madigan was standing motionless on the side of his trail watching his class. Madigan was injured, sustaining nerve pain in his back, neck, shoulders, with continual migraine headaches and loss of full physical capacity to work. Madigan’s injuries caused Mammoth Mountain to provide worker’s compensation benefits. 

Madigan sued for personal injuries, alleging that Graham engaged in reckless and dangerous behavior. In an odd twist, Graham filed a Motion for Summary Judgment, alleging that both claims were barred under the doctrine of primary assumption or risk because collisions are an inherent risk of skiing. The trial court granted summary judgment.  The appellate court reversed on appeal, finding that Graham’s conduct could be viewed as reckless and outside of the range of ordinary activity involved in the sport of snowboarding.

California has clearly outlined the inherent risks of skiing. See O’Donoghue v. Bear Mountain Ski Resort, 30 Cal.App.4th 188, 193 (Cal. App. 1994). Though O’Donoghue includes “other skiers” as one of the hazards inherent in skiing, this does not include skier’s throwing snowballs. Graham, engaged in a snowball fight and traveling at a high rate of speed looked uphill at his brother, causing the collision. Throwing snowballs while snowboarding is not an inherent risk of skiing and may evidence reckless conduct.

Shepard v. Bear Valley Ski Company, Cal.App. Unpub. LEXIS 5591. (2005)
On April 14, 2001, Rebecca Shepard crashed while attempting a large tabletop jump during the “Big Air Showdown” at Bear Valley Resort, in Alpine County, California.

Shepard, an expert skier, entered the event after signing a release form, exculpating Bear Valley from all liability. Shepard crashed while attempting to land a tabletop jump approximately 40 feet wide by 60 feet long. Id. Shepard overshot the landing zone, crashing on hardpack outside of the prepared and soft snow in the landing zone.  Shepard fractured her spine and pelvis during the unsuccessful landing, rendering her paraplegic.

Shepard alleged that Bear Valley “negligently designed and constructed the ski jump, and its approach, run, and landing areas.” Bear Valley filed a Motion for Summary Judgment based on “express assumption of risk, primary assumption of risk, and lack of duty to warn about an open and obvious condition.” The court granted Summary Judgment, finding that express assumption of risk, in the form of the release agreement signed by Shepard, barred Shepard’s claim. Affirmed – Release agreements are an appropriate method for parties wishing to absolve themselves of liability for negligence.

Lackner v. North, 135 Cal.App.4th 1188 (2006)
Teri Lackner was standing in a largely deserted area at the base of an advance run used by skiers and snowboarders to stop and rest at Mammoth . As Lackner was conversing with her husband, Cassidy Bodine North, who had just sped down the run on his snowboard, headed directly towards her at a high rate of speed and crashed into her, causing her severe injuries. The trial court granted defendants’ summary judgment finding inter alia, that primary assumption of the risk bars their liability to plaintiff and that punitive damages are not recoverable against North. On appeal, the court reversed.  Lackner was at a virtual standstill while North rode directly towards her with increasing speed, making no effort to alter his course until he was too close to avoid hitting her. The fact Lackner’s husband heard her bones being crushed and her massive injuries are  evidence of the tremendous force of the impact and the speed North was traveling when he hit her. Under these circumstances, the court found that there is a triable issue of fact as to whether or not the collision was inadvertent and unavoidable because North lost control of his snowboard as a result of a risk inherent in snowboarding. Lackner’s evidence shows that the collision occurred because North was racing his teammates and was preoccupied with his position. As a result, he rode his snowboard into a rest area at a high rate of speed without looking where he was heading and despite the fact he was unfamiliar with the terrain and the ski area in general. However, visibility was excellent and the area was wide open. Had he been paying attention to his surroundings and the few people standing in the area, he had the skill, and would have had the time and the space to avoid hitting Lackner. 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. Lackner therefore had raised a triable issue of material fact as to whether North was reckless.

Placer County Ski Ordinance – Placer County, home to eleven ski resorts, has a ski safety ordinance:

9.28.040 Skier duties—Misdemeanor.

            Skiers shall have the following duties, a violation of which shall constitute a misdemeanor:

            A.        When involved in a skiing collision with other skiers which results in bodily injury to another person, a skier shall not depart from the scene of the accident without first leaving his or her name and address with the ski patrol in the ski area where such injury occurred.

            B.        A skier shall not knowingly ski in an area or on a ski trail which is closed to the public and which has signs posted indicating such closures. (Prior code § 12.133)

9.28.050 Skier duties—Infraction.

            Skiers shall have the following duties, a violation of which shall constitute an infraction:

            A.        It is unlawful for any person to ski faster than is safe and it shall be the duty of all skiers to ski in a safe and reasonable manner, under sufficient control to be able to stop or avoid other skiers or objects.

            B.        Skiers must wear retention straps or other reliable devices to prevent runaway skis.

            C.        Skiers shall not embark or disembark from a ski lift except at designated areas, or by the authority of the ski lift operator.

            D.        It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug to ski in a ski area. (Prior code § 12.134)

9.28.030 Assumption of risk.

            Any individual or group of individuals who engage in the sport of skiing of any type, including but not limited to alpine and nordic, or any similar activity within the boundaries of a ski area including entry for the purpose of observing any skiing or similar activity, shall assume and accept the inherent risks of such activities insofar as the risks are reasonably obvious, foreseeable or necessary to the activities. Skiers who ski in any area not designated for skiing within the ski area control boundary, or who ski outside of a posted area boundary, assume the risks thereof. (Prior code § 12.132)

9.28.020 Definitions.

            The following words and phrases when used in this article shall be construed to have the following meanings:

            “Inherent risks of skiing” means and includes, but is not limited to, those dangers or conditions which are an integral part of the sport of skiing, including, but not limited to, changing weather conditions, variation or steepness of terrain, snow or ice conditions, surface or subsurface conditions, whether man-modified or not, bare spots, creeks, gullies, forest growth or rocks, stumps, lift towers and other structures and their components, collision with other skiers and a skier’s failure to ski within the skier’s own ability.

            “Injury” means any personal injury, death, or property, damage or loss suffered by a skier, ski area operator or ski area.

            “Skier” means any person who is within the boundaries of a ski area for the purpose of engaging in the sport of skiing, including but not limited to alpine and nordic, or any person who is within the boundaries of the ski area for the purpose of observing any skiing activity.

            “Ski area” means any area designated and maintained by a ski area operator for the purpose of skiing or for the observance of any skiing activity.

            “Ski area operator” means any person, corporation or association, or agent, officer, employee or representative, who operates a ski area within Placer County. (Prior code § 12.131)

 9.28.080 Skiers in competition.

The ski operator shall, prior to the beginning of any skiing competition, including but not limited to, nordic and alpine, allow each competitor a reasonable visual inspection of the course or area within which the competition is to be held. No liability shall attach to the ski area operator for the injury or death of any competitor proximately caused by such competitor’s engaging in a skiing competition. (Prior code § 12.137)

9.28.060 Skier duties—General.

            Skiers shall have the following duties:

            A.        Skiers shall familiarize themselves with the posted information supplied by the ski area operator on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail.

            B.        Skiers shall not cross the uphill track of any surface lift except at points clearly designated by the ski area operator.

            C.        Skiers shall not overtake any other skier except in such a manner as to avoid contact with the overtaken skier, and shall grant the right-of-way to the overtaken skier.

            D.        Skiers shall yield to other skiers when entering a trail or starting down hill.

            E.         Skiers shall not board rope tows, wire rope tows, J-bars, T-bars, ski lifts or other similar devices unless they have sufficient ability to use such devices, and skiers shall follow any written or verbal instructions that are given by the ski area operator or representative regarding the use of the devices delineated in this section.

            F.         A skier who is bodily injured, if reasonably possible, shall give notice of the injury to the area operator before leaving the area.

            G.        A skier shall not stop skiing in such a manner as to obstruct a trail or be hidden from the view of skiers uphill. (Prior code § 12.135)

28.070 Notice of skier duties.

            Ski area operators shall provide notice to skiers of their duties as delineated in this article in a manner reasonably calculated to inform skiers of those duties. (Prior code § 12.136)


Prior to 2006

In Cheong v. Antablin, 946 P.2d 817 (Cal. 1997), the California Supreme Court held that "under the applicable common law principles, a skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another for simple negligence" (setting forth a gross negligence standard for skier/skier collisions; assumption of risk defense successful, rejecting plaintiff’s argument that ordinance’s enumeration of skier duties created an obligation higher than the common law). The Cheong court held that the ordinance did not provide a cause of action for skier/skier collisions on any basis, including negligence per se, as the ordinance in question was not enacted to protect the class of persons to whom plaintiff belonged (skiers), but was intended solely to protect operators. The court reaffirmed its unanimous opinions in Neighbarger v. Irwin Industries, Inc., 882 P.2d 347 (Cal. 1994) and Parons v. Crown Disposal Co., 936 P.2d 70 (Cal. 1997) that distinguished between instances of primary assumption of risk (where defendant has no duty to protect because a danger is inherent), and of secondary assumption of risk (where defendant has a duty and its breach causes injury to plaintiff). In Knight v. Jewett, 834 P.2d 696 (Cal. 1992), the leading case addressing assumption of risk defense, the court held that the only duty co-participants and site operators have is a duty "to use due care not to increase the risks . . . over and above those inherent in the sport" (the court concluded that assumption of risk survived legislative adoption of comparative negligence, in a ruling opposite to Vermont’s Sunday case). Alternately, the Freeman test has been used in lesser courts to determine that a risk is not "inherent" if "the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport." Freeman v. Hale, 30 Cal. App. 4th 1388, 1394 (Cal. Ct. App. 1994). According to a federal court, whether a duty exists by virtue of such a duty being deemed outside the scope of risks inherent in the sport is resolved as a matter of law. Randall v. Mammoth Mountain Ski Area, 63 F.Supp.2d 1251 (E.D. Cal. 1999). Judicial determinations of inherent risk have varied. Freeman, above (increased collision risk due to alcohol consumption not inherent); Connelly v. Mammoth Mountain Ski Area, 39 Cal. App. 4th 8 (Cal. Ct. App. 1995) (skiing into lift tower an inherent risk); Campbell v. Derylo, 75 Cal. App. 4th 823 (Cal. Ct. App. 1999) (triable issue existed as to whether failure to use required snowboard retention strap increased risk beyond those inherent, where use would not chill participation). The California Supreme Court has upheld an express waiver as a complete defense.Knight, above. In O’Donoghue v. Bear Mountain Ski Resort, 30 Cal. App. 4th 188 (Cal. Ct. App. 1994), the court denied relief to a skier, experienced with the particular run, that mistook an unmarked ravine full of boulders for a catwalk and was injured; the court found primary assumption of an inherent risk for which ski area operator had no duty to mitigate, as well as skier’s contractual waiver by virtue of lift ticket language. A release is generally held valid where a claim arises from negligent maintenance or adjustment of equipment by a rental operator, but other claims may survive. Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715 (Cal. Ct. App. 1993) (strict products liability action against manufacturer or distributor may still be available). In a case alleging both normal and gross negligence in operation of a lift, injuring a child participating in ski school, waiver signed by mother upheld. Platzer v. Mammoth Mountain Ski Area, 104 Cal. App. 4th 1253 (Cal. Ct. App. 2002), review denied.

Call Now

Free Case Review