Lackner v. North

• Decision Date: 24 January 2006
• Docket Number: No. C047061.,C047061.
• Court: California Court of Appeals Court of Appeals
• Parties: Teri LACKNER, Plaintiff and Appellant, v. Cassidy Bodine NORTH et al., Defendants and Respondents.

37 Cal.Rptr.3d 863

135 Cal.App.4th 1188

Teri LACKNER, Plaintiff and Appellant, v. Cassidy Bodine NORTH et al., Defendants and Respondents.

No. C047061.

Court of Appeal, Third District.

January 24, 2006.

Sands & Associates, Leonard S. Sands, Heleni E. Suydam, Beverly Hills, Tracy Neal-Lopez, Costa, Abrams & Coate, Charles M. Coate, Santa Monica, for Plaintiff and Appellant.

Martin S. McHugh, Chico; Halkides, Morgan & Kelley, John P. Kelley; Tucker Ellis & West, Peter J. Koenig, Brian T. Clark, San Francisco, for Defendants and Respondents.

BLEASE, Acting P.J. Plaintiff Teri Lackner (Lackner) appeals from the summary judgment entered in favor of defendants Cassidy Bodine North (North), a member of the Chico High School Ski and Snowboard Team, Darryl Bender (Bender) who was North's coach, Chico Unified School District (Chico), Oroville Union High School District (Oroville), and Mammoth Mountain Ski Area (Mammoth).

Lackner brought this action to recover for personal injuries sustained at Mammoth while she was standing in a largely deserted area at the base of an advance run used by skiers and snowboarders to stop and rest. As Lackner was conversing with her husband, North, who had just sped down the run on his snowboard, headed directly towards her at a high rate of speed and crashed into her, causing her severe injuries.

The trial court granted defendants' summary judgment finding inter alia, that primary assumption of the risk bars their liability to plaintiff and that punitive damages are not recoverable against North.

On appeal, Lackner contends the trial court erred by granting North's motion for joinder, summary judgment, and summary adjudication because his motions were untimely and triable issues of fact remain as to whether his conduct was reckless and whether he acted with malice warranting punitive damages. Lackner also contends the trial court erred in granting the remaining motions for summary judgment because primary assumption of the risk is inapplicable to the other defendants, and Chico and Bender are not immune from liability under Government Code section 831.7.

We find there are triable issues of fact on the question whether North's conduct was reckless. We shall therefore reverse the judgment in favor of North. Because Lackner does not raise any claim of error as to Oroville, we shall dismiss that portion of her appeal. We shall affirm the judgments in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND¹

A. The Parties

Mammoth hosted the California Nevada Ski and Snowboard Federation State High School Championships (Championships) from March 3, 2002 through March 7, 2002. The event brought approximately 400 high school participants. Race participants were supposed to train for their respective events on the training courses designated for their event, although Mammoth granted the participants unrestricted access to the entire mountain for free skiing and snowboarding.

North, an 18-year-old senior at Chico High School and a member of the Chico High School Ski and Snowboard Team (team), was a participant in the snowboarding championship. He was ranked in the top three on his team and was entered in the slalom and giant slalom events. This was his first visit to Mammoth. Bender was employed by Chico as the head coach of the team and accompanied the team to the championship.

Lackner and her husband were skiing at Mammoth on Sunday, March 3, 2002. Lackner was an expert skier who had been skiing for 31 years and had skied at Mammoth over 100 times. No public announcement was made about the championship and the Lackners were unaware training activities were taking place that day.

Sunday, March 3rd was designated as a training day for the championship participants. At approximately 8:30 a.m., Bender told the team to "go up and take several warm up runs, take it slow and easy and report down to the top of Terry and Fascination," where the actual race courses began.

The team took a gondola to the top of the mountain. North and three team members decided to begin their warm-up by riding their snowboards down Cornice Bowl, which was not one of the designated training runs. The foursome chose this run because it was the highest one on the mountain and they wanted to "check out Mammoth from the top" and have some fun. North had never been down Cornice Bowl before.

Cornice Bowl is a very steep run for advanced skiers. The bottom of the run flattens out into a natural gathering area, which leads to two other runs and a precipice referred to as Hair Jump. While the flat area of Cornice Bowl is not marked as an official rest stop, skiers and snowboarders frequently gather there to rest and regroup before continuing their descent to the bottom of the ski area where the ski lifts are located.

North and Tyler Frank began their descent about the same time, but North took the lead, coming down the run extremely fast and in a controlled tuck position. He appeared to be racing his other teammates, looking back more than once to see where the others were positioned, noting that Frank was close behind him.

Meanwhile, Lackner and her husband had just completed a run down Cornice Bowl, which Lackner had been down several hundred times. Her husband completed the run ahead of her and was waiting for her in the flat area to the side of the run just above Hair Jump. When Lackner reached the bottom, she traversed over to her husband and was standing there talking to him when North collided with her. At that time, she was facing away from the run and did not see North until he hit her. There was plenty of open space around her and the visibility on the mountain was clear. There were no obstacles between the Lackners and someone descending Cornice Bowl.

North did not see Lackner until he was about 10 to 15 feet away from her. At that time he attempted to swerve, lost control,² and crashed into her, catapulting the two of them 50 feet into the air. The force was so great that Lackner's husband heard her bones crush. North and Lackner slid down the mountain together, coming to rest in a gully at the bottom of Hair Jump.

North was not injured. Lackner on the other hand, suffered severe injuries. The impact shattered her ankle and broke her lower leg into 16 pieces. Her right tibia and pelvis were fractured, the muscles and tendons in her thigh were torn, and she was bruised throughout her body. The surgeon who operated on her equated her bone fractures with those suffered in a car or motorcycle accident.

Mammoth revoked North's lift ticket pursuant to its policy to revoke a lift ticket when a skier or snowboarder engages in reckless conduct, fast skiing, or collides with another skier. North was also suspended from the championship.

Lackner filed suit against North, Bender, Chico, Oroville, and Mammoth to recover damages for personal injuries. She alleged negligence and battery against North and seeks punitive damages from him. She alleged that Bender, Chico, and Oroville negligently supervised North, and that Mammoth negligently supervised the sports premises.

Mammoth, Bender, Chico, and Oroville moved for summary judgment. North moved to join their motions and filed a separate statement of undisputed facts and a separate motion for summary adjudication of the punitive damages claim. The court granted all motions finding the primary assumption of the risk bars liability against all named defendants. Additionally, the court found Bender, Chico, and Oroville were immune from liability (Gov.Code, § 831.7) and did not owe Lackner a duty of care because North had no known propensity to ski recklessly or out of control and he was an adult. Additionally, the court found no factual basis to show Oroville was associated with or responsible for the team, North, or Bender.

Judgment was entered in favor of all defendants and Lackner appeals from the judgment as to each defendant.³

DISCUSSION

I

Standard of Review

The standard of review for summary judgment is well established. The motion "`shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" (Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met his burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001, 67 Cal.Rptr.2d 483.) In performing our independent review of the evidence, "we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438, 111 Cal.Rptr.2d 534.)

In determining whether there is a triable issue of material fact, we consider all the evidence set forth by the parties except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) We accept as true the facts supported by plaintiff's evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148, 65 Cal.Rptr.2d 112), resolving evidentiary doubts or ambiguities in plaintiff's favor. (Saelzler v....