Freeman v. Hale

• Citation: 30 Cal.App.4th 1388,36 Cal.Rptr.2d 418
• Decision Date: 15 December 1994
• Docket Number: No. E012018,E012018
• Court: California Court of Appeals
• Parties: Deborah FREEMAN, et al., Plaintiffs and Appellants, v. Curtis HALE, Defendant and Respondent.

Page 418

36 Cal.Rptr.2d 418

30 Cal.App.4th 1388

Deborah FREEMAN, et al., Plaintiffs and Appellants, v. Curtis HALE, Defendant and Respondent.

No. E012018.

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

Dec. 15, 1994.

[30 Cal.App.4th 1390] Howarth & Smith, Don Howarth, Marcus J. Berger and Kenneth S. Tune, Los Angeles, for plaintiffs and appellants.

Cassidy, Warner, Brown, Combs and Thurber, B. Kent Warner and Glen A. Stebens, Santa Ana, for defendant and respondent.

OPINION

McKINSTER, Associate Justice.

Plaintiffs appeal from a summary judgment entered against them in their action for damages for personal injuries and loss of consortium. We reverse. In doing so, we hold that (1) the consumption of alcoholic beverages is not an activity which is within the range of activities involved in the sport of downhill snow skiing; (2) to the extent the consumption of alcohol increases the risk of collision between the drinking skier and other skiers, that increased risk is not one which is inherent in the sport; and (3) therefore the other skiers have not assumed that increased risk merely by participating in the sport.

FACTUAL BACKGROUND

At 3 p.m. on November 26, 1986, Deborah Freeman ("Freeman"), a 21-year-old, experienced skier, boarded a chartered bus in Riverside for a 5-day ski trip sponsored by the Ski Club of Riverside Community College. Defendant Curtis Hale was also on the bus. They arrived at a hotel in Utah at 7 a.m. the next morning, checked in, changed clothes, and reboarded the bus for Snowbird Mountain.

They began skiing at approximately 9 a.m. Freeman and Hale skied with a group of two or three other people throughout the day. While the parties disagree as to how the collision occurred, it is undisputed that at approximately 4 p.m., while skiing together, Hale fell on top of Freeman. Freeman's neck was broken, resulting in quadriplegia.

On the overnight trip to Utah, Hale consumed alcoholic beverages and slept for only two to three hours. Before leaving the hotel for the ski slopes, he filled a bota bag with a mixture of bourbon and Coca-Cola. Hale drank from that bag on a number of occasions after lunch. At times, Hale was loud and boisterous, apparently manifesting some of the symptoms normally associated with drinking alcohol.

PROCEDURAL BACKGROUND

Freeman and her husband filed a timely action against Hale, seeking to recover damages for the personal injuries suffered by Freeman and for the loss of consortium suffered by her husband. It alleges in part that those injuries and that loss were proximately caused by Hale by skiing so "negligently, recklessly and carelessly" that he collided with Freeman.

Trial was set for September 14, 1992. The Supreme Court's long-awaited opinions in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 ("Knight ") and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 had been issued less than a month earlier. The parties stipulated to waive the usual notice requirements to permit Hale to move for summary judgment based on the new decisional law. (Code Civ.Proc., § 437c.) The motion was filed on September 16 and argued on September 18. The trial court granted the motion, and entered judgment in favor of Hale. Freeman and her husband appeal.

DISCUSSION

In his answer to the complaint, Hale alleged that he had no liability because Freeman had assumed the risk of any harm. His motion for summary judgment was made and granted on the same ground. Accordingly, we first examine the current law governing that defense, and then apply that law to the facts established by Hale's motion for summary judgment.

A. THE DEFENSE OF IMPLIED ASSUMPTION OF THE RISK AFTER KNIGHT V. JEWETT

In Knight, the Supreme Court set out to resolve "the question of the proper application of the 'assumption of risk' doctrine in light of [that] court's adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, [119 Cal.Rptr. 858, 532 P.2d 1226]...." (Knight, 3 Cal.4th at pp. 299-300, 11 Cal.Rptr.2d 2, 834 P.2d 696. ¹ ) Preliminarily, the court noted that the assumption of the risk doctrine has been confusingly applied to two different types of factual settings involving analytically distinct legal concepts. (Id. at p. 303, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

"In some settings--for example, most cases involving sports-related injuries--past assumption of risk decisions largely have been concerned with defining the contours of the legal duty that a given class of defendants--for example, owners of baseball stadiums or ice hockey rinks--owed to an injured plaintiff." (Id. at pp. 303-304, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Those cases which conclude that there was no legal duty on the part of the defendant to protect the plaintiff from the particular risk of harm that caused the injury are examples of " 'primary assumption of risk.' " (Id. at pp. 308, 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In those cases, the plaintiff's recovery continues to be completely barred, despite the comparative fault doctrine. (Ibid.)

"In other settings, the assumption of risk terminology historically was applied to situations in which it was clear that the defendant had breached a legal duty of care to the plaintiff, and the inquiry focused on whether the plaintiff knowingly and voluntarily had chosen to encounter the specific risk of harm posed by the defendant's breach of duty." (Id. at p. 304, 11 Cal.Rptr.2d 2, 834 P.2d 696.) When the plaintiff has done so, his or her decision is an example of " 'secondary assumption of risk,' " which has now been "merged into the comprehensive comparative fault system adopted in Li." (Knight at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696, fns. omitted.) In those cases, the jury will compare the plaintiff's responsibility for his or her injuries to that of the defendant, so that the loss may be equitably apportioned between them. (Id. at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm depends on the nature of the activity or sport in which the defendant was engaged, and on the role or relationship of the defendant and the plaintiff to that activity or sport. (Knight, at pp. 309, 313, 317, 11 Cal.Rptr.2d 2, 834 P.2d 696.) That question is one "to be decided by the court, rather than the jury." (Id. at p. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

"As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.... In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself." (Id. at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) "Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that 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." (Id. at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

For example, "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." (Id. at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) By contrast, the risk that the resort will fail to maintain a towrope is not one which is inherent in the sport, and thus the resort "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." (Id. at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Sometimes, however, the risk that other participants in the sport will engage in careless conduct is inherent in the sport. For instance, the chance that a baseball player will carelessly throw a ball, injuring another player, is inherent in baseball. One of the risks inherent in basketball is that one player will carelessly extend an elbow, injuring another player. The question is, how are courts "to determine when careless conduct of another [participant] properly should be considered an 'inherent risk' of the sport that (as a matter of law) is assumed by the injured participant?" (Id. at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In answering this question, the Supreme Court first suggested that a risk is inherent if it cannot be eliminated "without altering the nature of the sport." (Id. at p. 317, 11 Cal.Rptr.2d 2, 834 P.2d 696.) It then settled upon the following distinction: "[I]t is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport...." ² (Id. at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Instead, "a participant in an active sport breaches a legal duty of care to other participants--i.e., engages in conduct that properly may subject him or her to financial liability--only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." ³ (Id. at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696; fn. omitted.)

Still to be answered is the question of what conduct is outside the range of ordinary activity involved in a sport. For guidance, we look to the Supreme Court's stated purpose in limiting the liability of those who participate in active sports: "[I]n the heat of an active sporting event like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior. [V]igorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct." (Id. at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Thus, the "imposition of legal liability for...