California is often heralded for being one of the few states where one can go swimming at the beach, go skiing on a mountain, go camping under the stars in the desert, and eat at a 5-star restaurant all within hours on the same day. This is especially true when ski season starts, which is right around the corner. So now is a good time to look at the risks inherent in skiing and the potential affirmative defenses such as “assumption of the risk.” This affirmative defense may be available in certain premises liability cases.
Some activities, like skiing and snowboarding, are inherently dangerous. There is a risk of bodily injury and harm once you set foot on the snow from people colliding with one another, being poked by a ski, or running into a tree. If you take part in such snow sports, you assume the risks involved in those sports and potentially waive any recourse if you are injured in the process. This stands true unless the defendant was grossly negligent, reckless, or intentional in injuring the plaintiff or if the defendant’s conduct was entirely outside the range of what someone would ordinarily be expected to do during such activity1.
An action for negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached that duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. Ann M v. Pacific Plaza Shopping Center. People generally have a duty to use due care to avoid injury to others and may be held liable if their careless conduct injures another person. Knight v. Jewett.
In the context of snow sports, ski resorts still owe invitees who use their facilities the duty to inspect for conditions that may result in injury, such as in the restrooms, dining halls, gift shop, etc. The assumption of risk is less of an affirmative defense if a person is injured while in these circumstances.
Assumption of Risk
The doctrine of primary assumption of risk is an exception to the general negligence rule. Applied in the sporting context, the primary assumption of the risk doctrine precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. Avila v. Citrus Community College Dist.
Under the primary assumption of risk doctrine, there is no duty to eliminate or protect a plaintiff against risks that are inherent in a sport or activity. Primary assumption of risk means that the plaintiff has voluntarily participated in a sport that includes various inherent risks and, therefore, the defendant is relieved of his or her duty to use care to avoid the plaintiff suffering an injury as a result of those inherently risky aspects of the sport.
In other words, your body and health are your own responsibility. If you are injured while snowboarding or skiing by another participant or a condition on the trail, you likely do not have any recourse (unless in the rare instance of gross negligence or intentional harm).
This is not to say that ski resorts do not give any warnings about the conditions of the trial. Most ski resorts, as a courtesy, provide details about trail conditions, hazardous areas such as icy portions, closed trails, rock slide warnings, and temperature/weather warnings so that skiiers/snowboarders can be informed of what the trail conditions are like. It is intended only to be informational. So, an injured party will not be successful in arguing that the ski resort should have warned them about every condition that a person is potentially exposed to on the mountain.
What is Considered an Inherently Dangerous Snow Sport?
The question of whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.
In determining whether the doctrine applies, the Court must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.
An activity falls within the scope of primary assumption of risk if it is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. California has long held that the primary assumption of risk doctrine especially applies to skiing and snowboarding because this activity commonly occurs at a ski resort. However, the assumption of risk also would apply to other snow sports such as snowshoeing, snowmobiling, ice cave climbing, snow ziplining, as well as others.
As a sport which may readily be characterized by the phrase: “Thrills, chills and spills,” it must be acknowledged that inadvertent collisions are inevitable and inherent in the sport. These inherent risks include the risk that coparticipants ascending a blind hill from opposite directions might not be able to see one another in time to avoid a collision.
In these types of activities, the integral conditions of the sport or the inherent risks of careless conduct by others render the possibility of injury obvious and negate the duty of care usually owed by the defendant for those particular risks of harm. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty that might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.
Exceptions to the Assumption Risk Doctrine
As explained above, the doctrine of assumption of the risk is a complete bar to a plaintiff’s claim because of a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the activity.
However, an injured party could overcome the assumption of risk defense if there is evidence that the ski resort committed intentional or malicious, and in some cases, grossly negligent violations of California ski law which causes property damage or death. Extreme examples of this would be if the ski resort’s employee pushed a skier off a ski lift or if the resort set up unavoidable booby traps or purposefully dug up hidden deep holes.
Moreover, generally, a lift ticket is the contract between the skier/snowboarder and the resort operator. Resort operators are protected through contractual waivers in the ticket agreement. The protections are not absolute, but they set a very high bar. Such waivers do not prohibit injured skiers/snowboarders from suing if the actions/inactions of the resort expose the skier/snowboarder to an extraordinary or increased risk of injury.
So, with winter upon us, get out there and enjoy the great outdoors, but as Sergent Phil Esterhaus from Hill Street Blues would say, “Let’s be careful out there!”
1With skiing and snowboarding, there are few realistic situations that may fall within those exceptions when you are partaking in the sport.
About the Author
Darren G. Mayers is Special Counsel at Bradley, Gmelich + Wellerstein LLP where he concentrates his litigation skills in representing insured clients in catastrophic injury cases. He has an extensive litigation background, having represented governmental entities for claims arising out of the California Tort Claims Act. He has represented national retailers, restaurants, and bars in premises liability and negligent security actions, and has represented trucking companies and truck drivers in claims related to over-the-road accidents. Mr. Mayers has extensive experience as a member of a GO Team, a first response to transportation accidents, along with accident reconstruction experts, who are available 24 hours a day to respond to any accident, interview the driver, and control the accident scene. He has also represented non-profit organizations throughout California. While in law school Mr. Mayers was a member of the Board of Governors of the Trial Advocacy Program. He has tried cases to jury verdict related to auto liability, premises liability, breach of contract, and negligent security.