Metropolitan News-Enterprise


Wednesday, January 25, 2006


Page 1


Court of Appeal Rules:

Assumption of Risk No Defense for Reckless Snowboarder


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Butte Superior Court judge erred in ruling that the primary assumption of risk doctrine provided a defense to a young snowboarder whose excessive speed and inattentiveness allegedly caused a serious crash, the Third District Court of Appeal ruled yesterday.

The justices reinstated Teri Lackner’s claim against Cassidy Bodine North, who crashed into Lackner while he was on a training run in connection with a state high school ski and snowboard competition at Mammoth Mountain Ski Area in March 2002. Lackner was standing still, talking to her husband in an area used by resting skiers, when North crashed into her.

The crash caused serious injuries, breaking Lackner’s leg in 16 places. Her husband testified that he heard her bones crush.

Yesterday’s ruling was only a partial victory for Lackner, however.

While reversing the trial court’s grant of summary judgment in favor of North, the panel upheld the grant of summary judgment in favor of his coach and school district, and in favor of Mammoth Mountain Ski Area. It also upheld a summary adjudication in favor of North on the issue of punitive damages, so Lackner can only seek compensatory damages at trial.

The California Nevada Ski and Snowboard Federation State High School Championships brought 400 young skiers and snowboarders to Mammoth. On a training day prior to the actual competition, North and some of his teammates decided to ride their boards down Cornice Bowl, at the top of the mountain.

Looking for Fun

Cornice Bowl was not one of the designated training runs, but Mammoth gave all of the competitors unlimited use of the facility. North said in his deposition that he and his Chico High School teammates wanted to “check out Mammoth from the top” and have fun by going down Cornice Bowl.

According to testimony, North took the lead, coming down the run extremely fast and in a controlled tuck position.  He appeared to be racing his other teammates, looking back more than once to see where the others were positioned.

Lackner—a Mammoth veteran, unlike North—said she and her husband had just completed a run down Cornice Bowl. Her husband completed the run ahead of her and was waiting for her in a flat area to the side of the run just above another run called Hair Jump. 

When Lackner reached the bottom of Cornice Bowl, she testified, she traversed over to her husband and was standing there talking to him when North collided with her.  At that time, she explained, she was facing away from the run and did not see North until he hit her. 

Witnesses agreed there were no obstacles between the Lackners and someone descending Cornice Bowl and that visibility was clear that day.

Justice Coleman Blease, writing for the Court of Appeal, said the trial judge erred in ruling that the primary assumption of risk doctrine—under which the plaintiff’s acceptance of the risk inherent in a sport or other activity is a complete defense to a claim of negligence—barred Lackner’s claim against North.

“Not all conduct engaged in during an active sport is excused under the doctrine...,” the justice explained. A defendant may be held liable, he wrote, for conduct that is so reckless it goes beyond the inherent risks, such as when a discus thrower threw a discus into a playing field without determining that it was clear of other persons.

Snowboarder’s Training

North’s collision with Lackner was not of the “garden variety,” the justice wrote. As an advanced snowboarder, Blease said, he had been trained to “stay in control, to give downhill skiers the right of way, to beware of skiers from above whenever merging or traversing, and to observe all signs and warnings.”

The plaintiff’s evidence, the justice continued, suggests that the collision occurred because the defendant “was racing his teammates and was preoccupied with his position.” Under those circumstances, he said, there is a triable issue as to the defendant’s recklessness.

Blease went on to say, however, that recklessness does not necessarily constitute malice. Given the undisputed evidence that the defendant never intended to hit the plaintiff and made an aggressive effort to avoid the crash when he belatedly noticed her, there is no basis for an award of punitive damages, the justice concluded.

In rejecting Lackner’s claims against Mammoth, the Oroville Union High School District—of which Chico High School is part—and coach Darryl Bender, the justice said that none breached any duty owed to Lackner.

The duty of a school district to supervise students engaged in school activities, the jurist explained, does not extend to the protection of non-students at off-campus events. And Mammoth, he wrote, had no duty to supervise the students or warn the rest of its patrons that they were using the slopes.

The case is Lackner v. North, C047061.


Copyright 2006, Metropolitan News Company