Danieley v. Goldmine Ski Associates, Inc.

• Decision Date: 22 February 1990
• Docket Number: No. E005891,E005891
• Citation: 266 Cal.Rptr. 749,218 Cal.App.3d 111
• Court: California Court of Appeals Court of Appeals
• Parties: Vicki L. DANIELEY, et al., Plaintiffs and Appellants, v. GOLDMINE SKI ASSOCIATES, Defendant and Respondent.

Page 749

266 Cal.Rptr. 749

218 Cal.App.3d 111

Vicki L. DANIELEY, et al., Plaintiffs and Appellants, v. GOLDMINE SKI ASSOCIATES, Defendant and Respondent.

No. E005891.

Court of Appeal, Fourth District, Division 2, California.

Feb. 22, 1990.

[218 Cal.App.3d 113] Law Offices of Robert F. Wilson and Robert F. Wilson, San Bernardino, for plaintiffs and appellants.

Hancock, Rothert & Bunshoft, Paul D. Nelson and Peter J. Koenig, San Francisco, for defendant and respondent.

OPINION

McDANIEL, Associate Justice.

The appeal here is from a summary judgment entered in favor of defendant Goldmine Ski Associates, Inc. (Goldmine) in an action arising from serious personal injuries suffered by plaintiff Vicki L. Danieley when she collided with a tree while skiing on lands in the San Bernardino Mountains, operated by Goldmine as a ski area. In the first count of the complaint Goldmine was charged with negligence in the operation and maintenance of the premises, which included the ski run next to which plaintiff Vicki L. Danieley was injured. More specifically, the complaint alleged that Goldmine had failed "to remove an obstacle [a tree immediately adjacent to the ski run] which presented an unreasonably high risk of harm ..." The second count, in which Charlie Danieley joined as a plaintiff, alleged a loss of consortium with his wife.

The trial court granted Goldmine's motion for summary judgment for the reason, as stated in the minute order, that "no facts alleged re establishing duty on the part of Defendant to remove obstacles." In our view, the trial court correctly ruled on the motion, and so we shall affirm the judgment.

EVENTS LEADING TO THE LITIGATION

In February of 1987, plaintiffs, husband and wife, along with their two sons, including Charlie Danieley III, traveled to the Goldmine Ski Area, adjoining Big Bear Lake in the San Bernardino Mountains, for a day of skiing. After lunch, while descending a ski run, bearing the name "Upper Claim Jumper" and designated as an "intermediate" run, plaintiff wife lost control of her skis while attempting to turn, and then, while out of control, collided with a large tree just beyond the groomed edge of the run.

Plaintiff wife sustained serious injuries as a result of the collision, and swift action by the ski patrol in removing her from the mountain probably saved her life. This litigation followed.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

As above noted, plaintiffs' two-count complaint included a garden-variety premises liability claim based on defendant ski area operator's alleged negligence, plus plaintiff husband's claim for loss of consortium. Goldmine's answer denied any responsibility for plaintiff wife's injuries and alleged four affirmative defenses, including that plaintiff wife had "assumed any and all of the risks ... referred to in said Complaint, and therefore, assumed the risk of any injuries or damages sustained, if any."

Extensive discovery ensued, including depositions of both plaintiffs and son Charlie III, plus those of two Goldmine employees, Marshall D. Boswell, Jr. and Joseph A. Shuff.

Goldmine then noticed a motion for summary judgment, and papers filed in support of the motion included excerpts of certain of the depositions noted, authenticated by the declaration of one of Goldmine's attorneys. Plaintiffs' opposition filings included additional, authenticated deposition excerpts.

Distilling the contents of the deposition excerpts on which it relied, Goldmine prepared and filed a statement of undisputed facts as here recited, with the deposition citations omitted.

"1. VICKI DANIELEY was an intermediate skier who had skied approximately 15 to 20 days between 1985 and February 1987. She considered herself competent to ski 'advanced' runs.

"2. VICKI DANIELEY before had fallen while skiing and understood that falling was part of the sport. She understood that if she fell, she could be injured.

"3. VICKI DANIELEY knew that ski runs were lined with trees. She knew that it was possible to lose control of her skis and strike such a tree, causing serious injuries.

"4. As a skier, VICKI DANIELEY was willing to assume these risks of injury in order to participate in the sport of skiing.

"5. VICKI DANIELEY knew that snow surface conditions can vary, and understood that she was free to ski down any run, essentially in any fashion she wanted. She previously had skied under conditions where she had to watch out for obstacles.

"6. Upper Claim Jumper is an intermediate rated ski run at Goldmine. Skiing conditions on the date of the injury were typical 'spring' conditions with soft snow and some hardpacked/icy areas.

"7. VICKI DANIELEY visited GOLDMINE with her family on February 3, 1987. She previously had skied at GOLDMINE on two or three occasions. She already had skied down Upper Claim Jumper once on the run immediately before her injury. She has no recollection of the day's events.

"8. VICKI DANIELEY had traversed across Upper Claim Jumper when she lost control of her skis while attempting a left turn, and then impacted a tree situated along the edge of the run. She was approximately 25 to 35 feet from the tree when she lost control and veered downhill into it. The tree was situated off the snow covered groomed portion of the run. There were no unusual obstacles found in the snow at the scene of the accident. There was no observable ice on the run in the area where she lost control."

Plaintiffs, in opposing the motion, of course insisted that there were triable issues of fact. Included as part of their Memorandum of Points and Authorities, plaintiffs recited what they perceived to be triable issues of fact as follows: "(1) whether the failure to remove or guard against a tree which is within or adjacent to a ski run, and which tree is located less than 100 feet from the top of chairlift number 1 and within clear view of the unloading station manned and controlled by defendant's employees, and this area of the ski run (which was designed, maintained and controlled by defendants and its employees) is commonly used by skiers to make one of their first downhill turns, constitutes a breach of duty to permissive users of the property; (2) whether the failure to remove or guard against the above-described tree, violates any applicable standard of care; (3) whether the presence of such a tree, in this particular location, is a dangerous condition which constitutes an unreasonable risk of harm to foreseeable use of the property; (4) whether defendant acted negligently in attending to plaintiff's injuries based upon defective equipment and/or improper medical treatment; ( ) whether defendant was negligent in failing to conduct any line of sight or other proof testing to assure that hazards within or adjacent to the ski run are removed; (6) whether defendant was negligent in failing to maintain proper maintenance, repair and/or inspection programs; and (7) whether defendant was negligent in the use, application and grooming of 'man made' snow in the area of plaintiff's accident."

Otherwise plaintiffs, in a separate filing, submitted a catalog of disputed facts, each supported by citations to portions of the several depositions noted. Such statement, without the deposition citations, reads:

"1. Ski Patrol employed by Goldmine were negligent in the care and treatment of plaintiff, Vicki Danieley, in that they were unable to get an oxygen tank to operate and a neck brace could not be used because it was broken.

"2. The ski run where plaintiff's accident occurred was groomed to the subject tree. [Original emphasis.]

"3. An artificial snow making machine was located adjacent to the subject tree, which was used to spray 'man made' snow in and around the tree.

"4. Defendant represented in its telephone message that skiing conditions were good to excellent, and conditions were very patchy with bare spots and rocks.

"5. The accident occurred less than 100 feet from the unloading station at the top of chair number 1. Defendant contends the accident occurred more than 150 yards from the top of chair number 1. [Original emphasis.]

"6. Even though plaintiff, Vicki Danieley, was not travelling very fast and the snow was soft and wet, plaintiff travelled 25 to 35 feet before striking the tree.

"7. Plaintiff never considered the risk of skiing into a tree before this accident.

"8. Plaintiff was unaware of the 'warning language' contained on defendant's lift ticket.

"9. Defendant Goldmine designed and maintained the ski run known as Upper Claim Jumper by (1) application of artificial snow; (2) daily grooming of the runs by both heavy equipment and ski patrol; (3) removal of rocks, trees, branches or other hazardous material; (4) clearing runs in the summer by rolling rocks and 'mulching', to wit, breaking apart and spreading around bales of hay to make the run smooth; and (5) continuous maintenance of the run by ski patrol and other employees.

"10. Defendant Goldmine can remove trees, subject to U.S. Forest Service approval, as it deems appropriate.

"11. Defendant failed to remove, or protect against, a large tree upon or adjacent to Upper Claim Jumper, and which was less than 100 feet from the top of chairlift number 1 and within view of the unloading station."

After considering the written filings and listening to oral argument, the trial court granted the motion, doing so from the bench. As indicated earlier, the minute order recited the reason for the ruling to be that no facts had been shown such as would establish any duty devolving on Goldmine to remove the tree with which plaintiff wife collided. Judgment was later entered on the order granting the motion, and this appeal followed.

DISCUSSION

By their notice of appeal dated August 30, 1988, plaintiffs have purported to appeal from a judgment of July 1, 1988. The latter date is the one on which the motion for summary judgment was granted and so plaintiffs have undertaken to appeal from a...