Allan v. Snow Summit, Inc.

Decision Date30 December 1996
Docket NumberNo. E016753,E016753
Citation51 Cal.App.4th 1358,59 Cal.Rptr.2d 813
CourtCalifornia Court of Appeals Court of Appeals
Parties, 97 Cal. Daily Op. Serv. 13, 97 Daily Journal D.A.R. 9 Gary ALLAN, Plaintiff and Appellant, v. SNOW SUMMIT, INC., Defendant and Respondent.

Meserve, Mumper & Hughes, Bernard A. Leckie and Joseph B. McGinley, Irvine, and Christopher J. Menjou, Los Angeles, for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter, and Terry L. Higham, Los Angeles, for Defendant and Respondent.


WARD, Associate Justice.

Plaintiff Gary Allan sued defendant Snow Summit, Inc., (Snow Summit) for injuries he allegedly suffered during a ski lesson. The trial court granted summary judgment in favor of Snow Summit on the basis of a release and waiver Allan had signed. Allan now appeals. The appeal is without merit; we affirm.


The moving papers for and against the motion for summary judgment showed the following:

Allan paid for skiing lessons for himself and his girlfriend on February 9, 1993. Snow Summit gave Allan a card in connection with the skiing lessons. The first side of the card contained information about the date and times of the ski lessons. The second side contained a statement entitled "Agreement and Release of Liability." Although he averred he did not remember reading or signing the card, Allan acknowledged that he did print his name in the indicated blank and sign at the end:


"I, Gary Allan, have voluntarily enrolled in a ski lesson offered by Snow Summit, Inc. I am aware that my participation in the ski lesson and THE SPORT OF SKIING INVOLVES NUMEROUS RISKS OF INJURY, including, but not limited to, falls, loss of control, collisions with other skiers and natural and man-made objects and I FREELY ASSUME THOSE RISKS.

"As lawful consideration for being permitted to enroll in the ski lesson, I AGREE TO RELEASE FROM ANY LEGAL LIABILITY AND AGREE NOT TO SUE SNOW SUMMIT, INC., their owners, officers, directors, members, agents and employees, for any and all injuries caused by or resulting from any participation in the ski lesson or the sport of skiing whether or not such injury or death was caused by alleged negligence.


"... /s/ Gary Allan

"Signature of participant or Parent/Guardian, if participant is a minor." 1

Snow Summit assigned Shawn Oldt, a professional ski instructor, to conduct the lesson. Allan told Oldt that he was a novice skier, and that he had only skied once before, about 15 or 20 years earlier. The lesson, which took place in the beginners' area, apparently went well.

The next day, February 10, Allan and his girlfriend returned for another lesson. Allan was so impressed with Oldt that he specifically asked for her as the instructor for the second lesson. After a period of time in the beginners' area, Oldt told Allan and his girlfriend that they were ready to go to the " 'top of the mountain.' " Allan was nervous and reluctant to leave the beginners' area. Oldt told Allan he could not ski on the beginners' slope forever, and that the only way to learn to ski properly was to be aggressive and " 'go after the challenge.' " Oldt told Allan the ski run at the top of the mountain was much wider than the beginners' slope, and was thus easier to ski, and that the slope was much like the beginners' area, but that it was slightly steeper in a few spots.

Allan went to the ski run at the top of the mountain. He found he could not turn as he could in the beginners' area. Each time he attempted to turn, he fell. The ski run was icy. The ice made it difficult to turn and felt hard. Allan fell numerous times during the run. Oldt continued to encourage Allan to get up and keep trying after each fall. When Allan finally reached the bottom of the run, Oldt remarked that that portion of the mountain was frequently icy, and that many people jokingly referred to the icy conditions as "Summit Cement."

After he had finished skiing on February 10, 1993, Allan felt pain in his back. The pain got progressively worse that evening.

The next morning he could hardly walk. Allan sought treatment; he was informed he had sustained herniated discs in his lumbar spine and that he would need surgery.

Allan filed the instant action against Snow Summit and Oldt, 2 apparently on the theory that, despite the "Agreement and Release of Liability," Snow Summit continued to owe him a duty of care (which Allan characterizes as a duty not to increase the risks inherent in the sport) because of the instructor/pupil relationship.

Snow Summit moved for summary judgment on grounds that (1) primary assumption of the risk was a complete defense to the negligence action, (2) Allan expressly assumed the risk of injury from skiing, and (3) the release agreement expressly bound Allan not to sue, even if Snow Summit were negligent.

Allan opposed the motion for summary judgment, contending that, because of the student/instructor relationship, the instant case involved "secondary assumption of the risk" rather than "primary assumption of the risk" which, under Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, is a complete defense. Allan also contended that sports instructors owed a duty of care to their students not to increase the risks inherent in the sport. He contended that there were either triable issues of fact or it was undisputed that Oldt had increased such risks through her instruction. Allan also urged that summary judgment should be denied because Snow Summit had assertedly failed to adhere to its own policy to encourage its ski school students to read the release agreement before signing it.

The court granted summary judgment because Allan, in consideration for being allowed to enroll in the ski school, specifically agreed to release Snow Summit and its employees from any liability for injuries caused by participating in the ski lesson, whether or not Snow Summit, or its employee, were negligent. The court based its ruling exclusively on the release and did not consider Allan's contentions that Snow Summit or Oldt had somehow increased the risks inherent in the sport of skiing (implied assumption of the risk under Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696).

Allan now appeals.

I. Standard of Review

On appeal after a summary judgment has been granted, we review the matter de novo to determine whether there are any triable issues of material fact. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674, 25 Cal.Rptr.2d 137, 863 P.2d 207; Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194, 1199, 50 Cal.Rptr.2d 192.) We find none here.

II. The Release Bars the Action

Examination of the papers supporting and opposing the motion for summary judgment demonstrates that summary judgment was proper as a matter of law. It is undisputed that Allan signed the "Agreement and Release of Liability" as a condition to enrolling in the ski school. Although Allan stated he did not remember seeing or signing the document, he acknowledged he received it and he signed it. The "Agreement and Release of Liability" states plainly on its face that skiing is a dangerous activity, and that in consideration of receiving ski lessons, the student must agree to hold Snow Summit and its employees harmless and not to sue for any injury caused by participation in the hazardous activity, even if Snow Summit or its employee were negligent.

Allan's complaint alleges nothing other than the fact that he was injured from participation in the ski lesson, and that Snow Summit and Oldt were negligent in causing the injury; this is precisely the subject matter to which Allan's promise not to sue applies. We perceive no reason why that promise should not be binding upon Allan (see infra ).

Summary judgment was proper based on the release.

III. No Exception to Applicability of the Release

Allan argues that the release was not applicable here. As we shall demonstrate, Allan's argument is without merit.

A. Allan's Contentions

Allan reasons as follows:

(1) Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, recognizes both "primary assumption of the risk," which is a complete defense to a negligence claim because the defendant owes no duty of care, and "secondary assumption of the risk," under which a duty of care is owed, and which does not provide an absolute defense. (2) Sports injury cases concerning instructors and students necessarily involve "secondary assumption of the risk." Thus, because a student/instructor relationship existed here, (3) this case must involve "secondary assumption of the risk", and (4) Snow Summit therefore owed a duty of care to Allan.

Allan further reasons that, (5) because no case after Knight v. Jewett, supra, has held that a release was effective to bar a negligence action in an instructor/student, "secondary assumption of the risk" case, (6) no case can so hold. Thus, Allan concludes, (7) because his case involves a post-Knight, "secondary assumption of the risk" situation, Knight assumption-of-the-risk principles (including the existence of a duty of care in "secondary assumption of the risk" cases) trump any release.

Finally, Allan urges that (8) the release he signed was an unconscionable, unenforceable contract of adhesion.

Allan is wrong in nearly every point. His analysis is lacking in logic.

B. Background: Knight v. Jewett

Ordinarily, people owe a general duty of care to others not to act so as to injure them. (Civ.Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.)

In Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the California Supreme Court recognized an exception to the general rule in the context...

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