O'Donoghue v. Bear Mountain Ski Resort

• Decision Date: 03 November 1994
• Docket Number: No. E012438,E012438
• Citation: 35 Cal.Rptr.2d 467,30 Cal.App.4th 188
• Court: California Court of Appeals Court of Appeals
• Parties: Conor O'DONOGHUE, Plaintiff and Appellant, v. BEAR MOUNTAIN SKI RESORT, Defendant and Respondent.

Page 467

35 Cal.Rptr.2d 467

30 Cal.App.4th 188

Conor O'DONOGHUE, Plaintiff and Appellant, v. BEAR MOUNTAIN SKI RESORT, Defendant and Respondent.

No. E012438.

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

Nov. 3, 1994.

[30 Cal.App.4th 191] Robins, Kaplan, Miller & Ciresi, Joseph L. Dunn and Alan M. Jones, Costa Mesa, for plaintiff and appellant.

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

OPINION

DABNEY, Acting Presiding Justice.

Plaintiff Conor O'Donoghue appeals after the trial court granted summary judgment against him on his cause of action for personal injuries he suffered while skiing at Bear Mountain Ski Resort. The court granted summary judgment for defendant Bear Mountain on the basis of "primary assumption of the risk." (See Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696.) We determine the injuries plaintiff suffered resulted from an inherent risk of the sport of skiing, and we affirm.

FACTS

Plaintiff was an intermediate- to advanced-level skier. He had skied at Bear Mountain before and was familiar with the runs there. He had skied the Grizzly Trail run before. On February 24, 1991, plaintiff was skiing on Grizzly Trail, an advanced ski run, when he saw a gap between two groups of trees on his right, bordering the run. He believed the gap looked like a place to cross over to another ski run. Plaintiff skied toward the opening between the trees. Unfortunately, as he reached the treeline he realized too late that the run bordered a ravine filled with boulders. Unable to stop, plaintiff skied over the edge and fell on the rocks below, suffering severe personal injuries. Immediately after the accident, plaintiff told the ski patrol that he was "skiing fast" and that he may have been "out of control."

Plaintiff filed an unverified complaint alleging a single cause of action for personal injury/premises liability. Plaintiff alleged that defendant Bear Mountain negligently maintained and operated the ski resort so that "by reason of [defendant's] negligence, [plaintiff] fell into an unmarked crevice onto rocks and boulders."

Defendant answered the complaint and moved for summary judgment on grounds that the natural forested condition of the land next to the ski run was open and obvious, that the condition of the natural forest and ravine bordering the run where plaintiff was skiing was an inherent risk of the sport of skiing (i.e., primary assumption of the risk), and that plaintiff entered into an enforceable contract, because of language printed on the back of his ski lift ticket, to assume all liability and risk of injury from skiing.

The trial court granted the motion for summary judgment, finding the danger was open and obvious and an inherent risk of the sport of skiing. The court entered a judgment thereon in favor of defendant Bear Mountain.

DISCUSSION

Plaintiff appeals, contending defendant failed to negate, in its moving papers, the existence of a duty of care to plaintiff.

We consider the case governed by the doctrine of primary assumption of the risk as set forth in Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696. The term "primary assumption of the risk" "embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk." (Id. at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.) It is to be contrasted with "secondary assumption of the risk," in which the defendant owes a duty of care, but the plaintiff knowingly encounters a risk created by the breach of the duty. In "primary assumption of the risk" cases, if there is no duty of care owed, the plaintiff's assumption of the risk acts as a complete bar to the plaintiff's cause of action. "Secondary assumption of the risk" cases are subsumed into the comparative fault tort system, and a plaintiff's assumption of that risk does not act as a bar to the action. (Ibid.)

Knight recognized that, although a property owner generally is required to use due care to eliminate dangerous conditions on the property (Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561), there is an exception "[i]n the sports setting ... [. C]onditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.]" (Knight v. Jewett, supra, 3 Cal.4th 296, 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) That is, there is no duty of care to protect a sports participant against risks of injury that are inherent in the sport itself.

Of course, "defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm." (Knight v. Jewett, supra, 3 Cal.4th at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Skiing is an outdoor sport over mountainous terrain. Skiers can expect to encounter moguls on a ski run (Knight v. Jewett, supra, 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, ...