Monday, February 5, 2007
Skier Assumed Risk of Collision With Mammoth Employee—C.A.
By KENNETH OFGANG, Staff Writer
A skier’s action against Mammoth Mountain Ski Area claiming that an employee’s violation of company policies while on the slopes caused a collision in which the plaintiff was injured is barred by the assumption of risk doctrine, the Third District Court of Appeal ruled Friday.
“Plaintiff has not explained why assumption of risk would not apply to a coparticipant employee when it applies to a person employed as a coach or instructor,” Justice George Nicholson wrote for the court.
The court affirmed Mono Superior Court Judge Edward Forstenzer’s ruling that the resort and its employee, Herbert J. Davidson, are entitled to summary judgment rejecting the suit by Karen J. Towns.
Evidence showed that Towns was skiing down the Stump Alley run in March 2002 when she collided with Davidson. At the time, Davidson was on duty as a ski host, wearing his uniform and skiing with his wife.
Davidson said he had just made a turn and did not see the plaintiff, who was on his left, prior to impact. Towns claimed she sustained serious injuries to her right leg, as well as a concussion and low back strain.
In granting summary judgment, Forestenzer rejected the contentions that triable issues existed as to whether Davidson was a coparticipant for purposes of assumption of risk analysis, and as to whether Davidson was reckless and thereby increased the risks inherent in the sport.
Nicholson said the trial judge was correct.
It is well established, the justice explained, that collisions with other skiers are an inherent risk of the sport, so that assumption of risk is a complete defense unless the defendant was so reckless as to increase the risk beyond that which the plaintiff may be held to have assumed.
The fact that Davidson was working at the time of the collision was dismissed by Nicholson as irrelevant. A number of cases, the justice noted, hold that coaches and their employers are shielded from negligence liability for primary assumption of risk.
“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,” the justice wrote. “This risk is so inherent and obvious it goes without saying plaintiff assumed that risk no matter who the other skiers may be.”
That Davidson “was also an employee subject to an employment policy to ski safely did not increase the risk of injury inherent in an already dangerous sport,” the jurist added.
A contrary ruling would have negative results, Nicholson said. “Davidson would no longer be able to ski aggressively as the sport allows, and Mammoth would no longer hire persons to perform any type of skiing as part of their job, no matter the benefit and safety they can provide to Mammoth’s guests,” the justice wrote.
As to the recklessness claim, Nicholson said there was insufficient evidence to support it.
“Davidson was skiing quickly and aggressively,” the jurist said, and “likely turned without first looking to see where he was going because he was concentrating on his technique.” That is not enough to show recklessness as a matter of law, Nicholson said.
Michael R. White of Kelegian White & Reed in Los Angeles represented the plaintiff on appeal, along with Chico attorneys Richard J. Molin and Edward V. Rizzuto. Tahoe-area attorney Mark D. Tokunaga represented Mammoth.
The case is Towns v. Davidson, C050829.
Copyright 2007, Metropolitan News Company