Addressing the legal doctrine of assumption of risk, a California Court of Appeal recently upheld the lower court’s determination that defendant relatives were not negligent concerning the skiing injuries suffered by the 13-year-old plaintiff, their cousin and nephew. In determining that summary judgment had been properly granted, since the plaintiff’s claims were barred under primary assumption of risk, the court found that the defendants had not increased the risks inherent in skiing. The facts associated with the summary judgment motions made clear that the plaintiff, 13 years old, went skiing with his father, uncle, and cousin. The plaintiff’s parents were divorced, and the plaintiff’s father had custody of him for winter break. While he had taken ski lessons before, he had not skied with his uncle or cousin, nor had he truly experienced skiing on lifts other than the bunny slopes.
The plaintiff’s uncle and cousin escorted him on an intermediate, “blue” slope, where he began to ski quickly, and his relatives lost sight of him. After skiing through a rope marking the outside edge of the turn, the plaintiff struck a padded signpost. He fractured his left leg in two places.
In his complaint for negligence, the plaintiff alleged the defendants (his father, uncle, and cousin) had a duty to protect him, supervise and warn him, and prevent him from injuring himself while skiing. He contended the defendants breached this duty. The plaintiff’s allegations of negligence stated he had limited skiing experience. Specifically, the plaintiff claimed their negligence stemmed from their failure to determine his ability to ski before taking him on a blue slope, as well as misrepresenting the difficulty and danger of the blue as compared to green slopes.
The lower court granted the defendant’s motion for summary judgment on the ground that the plaintiff’s action had been barred by the primary assumption of risk doctrine. On appeal, the plaintiff argued that assumption of the risk did not apply because the defendants were to supervise him as a minor, and they misrepresented the dangers.
On appeal, the court stated that generally, the assumption of risk doctrine holds that individuals owe a duty of ordinary care not to cause unreasonable risks of harm to others. A parent-child relationship requires that parents exercise the care that a reasonably prudent parent would use in similar circumstances. The court also noted that there is no duty to protect against risks that are inherent in a sport. The policy consideration is to avoid “chilling vigorous participation” in activities by creating a tort duty that eliminates the risk of harm.
In a personal injury lawsuit involving the legal doctrine of assumption of risk, the duty imposed on a defendant to the plaintiff is not to increase the risk of injury beyond what is inherent in the activity. Determining whether a defendant breached the duty not to increase the risk requires assessing the defendant’s conduct, as well as the plaintiff’s injury. In this case, to assess whether the defendants owed a duty to protect the plaintiff from the risk of harm in his claim, the court turned to the nature of skiing and the relationship of the defendants and the plaintiff to skiing.
Risks that are inherent in snow skiing include injuries in terrain as well as collisions with other skiers, visible objects, and equipment. Regarding whether the defendants had a duty to protect the plaintiff from inherent risks, the court stated the question depends on the defendant’s role. Here, the plaintiff argued that due to the roles of his father, uncle, and cousin to supervise him, primary assumption of risk should not apply.
The court stated that while the father had not been skiing with the plaintiff at the time of his injury, the father still owed a duty of care to his 13-year-old son. Since skiing involves risks of harm, the father did not have a duty to protect the plaintiff from those risks. The father had asked the uncle and the cousin to take the plaintiff skiing, and according to California law, as participants, his uncle and cousin did not have a duty to protect him from inherent risks, although they did have a duty not to increase the risks inherent in skiing.
In this case, the court rejected the plaintiff’s contention that his uncle and cousin misled him about skiing on a blue slope. The court also stated that while the plaintiff stated that his uncle and cousin lost track of him, the evidence did not show that they intended to mislead him about supervising him. Nor, the court stated, were they persuaded that primary assumption of risk did not apply in this case. The court stated the evidence showed that the plaintiff had skied at Mt. Rose before and taken lessons. According to California law, the plaintiff assumed the inherent risk of injury when skiing downhill, and none of the defendants had a duty to protect the plaintiff from that inherent risk. Their duty not to increase the risk was limited, requiring them to refrain from engaging in conduct that was reckless, outside the range of ordinary activity.
The court held that the plaintiff’s allegations did not create a triable issue as to whether he acted recklessly.
First, the court stated that the plaintiff had reached a skiing ability such that he could ski on a green slope without falling, and the next level would be a blue slope. The court stated that this level provided an opportunity for a challenge. The evidence did not raise a triable issue as to the defendants’ reckless conduct in taking the plaintiff on a blue slope. If the defendants were mistaken about the plaintiff’s skiing ability, it was not outside the range of ordinary activity in the sport.
The court also stated that the uncle and cousin made a subjective judgment about the difficulty of the conditions, which is not outside the range of ordinary activity in skiing. Additionally, it had been a “natural progression” to take the plaintiff on the blue slope after skiing on the green slopes.
According to the court, it would be inconsistent with California law to impose liability for urging the plaintiff to go beyond his current level of competence. At most, the court stated the defendants might have incorrectly assessed the plaintiff’s abilities. But incorrectly assessing skiing ability is not outside the range of ordinary activity. The plaintiff had not shown that his inability to meet the challenge of the slope and his injury from the risks inherent in skiing were due to the recklessness of the defendants. The court affirmed the judgment.
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More Blog Posts:
California Court Holds Defendant was not an “Affiliate” Entitled to Summary Judgment on Negligence and Premises Liability Claims After Tragic Vehicular Accident, Southern California Injury Lawyer Blog, March 27, 2017
California Court Upholds Finding that Defendant Not Liable for Incident on Bike Path in Santa Monica, as Plaintiff Had Not Set Forth Uncontradicted Evidence, Southern California Injury Lawyer Blog, March 13, 2017