Sesto v. Kachan, H030419 (Cal. App. 8/27/2007)

• Court: California Court of Appeals
• Writing for the Court: Bamattre-Manoukian
• Decision Date: 27 August 2007
• Docket Number: H030419
• Citation: Sesto v. Kachan, H030419 (Cal. App. 8/27/2007) (Cal. App. 2007)
• Parties: MELINDA SESTO, Plaintiff and Appellant, v. DALLAS KACHAN, Defendant and Respondent.

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MELINDA SESTO, Plaintiff and Appellant, v. DALLAS KACHAN, Defendant and Respondent.

H030419

Court of Appeals of California, Sixth Appellate District

August 27, 2007

NOT TO BE PUBLISHED

Appeal from the Santa Cruz County Super. Ct. No. CV151139.

BAMATTRE-MANOUKIAN, Acting P.J.

I. INTRODUCTION

This action arises from a collision at the Squaw Valley Resort between a skier, appellant Melinda Sesto, and her snowboarder friend, respondent Dallas Kachan. Moments before the collision occurred, Sesto was skiing ahead of Kachan on the same slope. On impulse, Kachan decided to catch up with Sesto in order to give her a congratulatory pat on her buttocks. The two collided after Kachan accelerated towards her on his snowboard with his arm outstretched. As a result of the collision, Sesto fell and sustained serious injuries.

Sesto filed a personal injury action against Kachan, who subsequently brought a summary judgment motion on the ground that Sesto's claim was barred by the affirmative defense of assumption of risk. The trial court granted the motion, finding as a matter of law that Sesto had assumed the risk of collisions with others while she was skiing. The trial court also denied Sesto's motion for reconsideration.

On appeal, Sesto contends that the trial court erred in determining that assumption of risk was a complete defense because Kachan failed to make the requisite showing under Knight v. Jewett (1992) 3 Cal.4th 296, 320 (Knight) that his conduct was within the range of ordinary activity involved in snowboarding and did not increase the inherent risk of a collision on the ski slope. For reasons that we will explain, we agree and therefore we will reverse the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On the morning of April 12, 2003, Sesto and her friends Kachan and Sophie Ward went to the Squaw Valley Resort to ski and snowboard. They were on the mountain at about 9:00 a.m. Sesto, a self-described intermediate skier, skied by herself most of the morning because she was slower than Kachan and Ward. At some point, Kachan observed Sesto's skiing and was pleasantly surprised to discover that Sesto was a "good skier" who was more advanced than he expected. Sesto was not Kachan's girlfriend and the two did not engage in any mutual "horseplay" on the ski slopes.

A collision between Sesto and Kachan occurred during their last run of the morning. Sesto had not seen Kachan snowboarding recklessly before that time. Immediately before the collision, Sesto, Kachan, and Ward were traveling down Mountain Run, a gently sloping ski run that goes to the bottom of the hill near the parking lot and main lodge. They were planning to have lunch together before resuming their day on the mountain.

About 10 seconds before the collision occurred, Kachan saw Sesto skiing straight down Mountain Run approximately 20 yards ahead of him. As stated in his deposition testimony, Kachan then made a split-second, impulsive decision to give Sesto a congratulatory pat on her "bottom": "[W]e were at our last run for the day, and we were all pretty happy with how we'd done on the slopes that day, to that point. I wanted to offer [Sesto] yet another congratulatory sign of how well she had done. I could clearly tell that there was no one else around. The slope was a gentle one. The risk appeared minimal. She was skiing in a straight line. She had skied far stronger than I expected throughout the day. It was a split second, impulsive decision made just in the seconds before the incident."

To reach Sesto in order to give her a congratulatory pat on her bottom, Kachan aimed to snowboard within "arm's reach" of her left side. According to Sesto, Kachan yelled "Sesto" as he approached her. She looked over her left shoulder and saw Kachan snowboarding at a fast speed while he was crouched down with his arm out to the side. Ward was skiing nearby. She saw Kachan heading towards Sesto in a low stance and thought there was going to be a collision. Kachan then collided with Sesto. Neither one knows exactly how the collision occurred or whether Kachan actually gave Sesto a pat on the bottom. Kachan recalled that the collision occurred in a split second: "One moment my arm was outstretched and the next we were both rolling down the hill." While Sesto only recalls tumbling and lying face down on the ground, she does not believe that Kachan intended to cause her to fall.

As a result of the collision, Sesto sustained injuries to her back, wrist and ankle and underwent three surgeries.

B. Procedural Background

1. The Pleadings

Sesto filed a personal injury complaint against Kachan on March 16, 2005. According to the factual allegations in the complaint, Sesto was skiing down an icy slope when she heard Kachan yell out her last name and saw him snowboarding in her direction at a high speed with his hand extended "to smack her from behind." When Kachan either "smacked her behind" or attempted and failed to "smack her behind," the parties collided. Sesto was knocked to the ground and "tumbled end over end on hard packed snow and ice."

Based on these allegations, Sesto stated a first cause of action for "negligence/reckless conduct" in which she asserted that defendant Kachan had breached his duty of care not to engage in conduct while snowboarding that was so reckless as to be outside the range of ordinary activity involved in skiing or snowboarding. Sesto also stated a second cause of action for battery, asserting that she had not consented to harmful or offensive contact with her person.

Kachan filed an answer in which he did not assert the affirmative defense of assumption of risk. In summary judgment procedure, the pleadings establish the issues to be considered in ruling on the motion for summary judgment. (Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122.) However, because it is apparent from the record that Sesto was fully informed that Kachan was asserting the defense of assumption of risk and his subsequent summary judgment motion was decided on the merits, we find the pleading defect to be harmless. (See Harper v. Kaiser Cement Corp. (1983) 144 Cal.App.3d 616, 620-621.)

2. The Motion for Summary Judgment

Kachan brought a motion for summary judgment on the ground that Sesto's personal injury action was barred by the affirmative defense of assumption of risk. Kachan relied on the rule established in Knight, supra, 3 Cal.4th at page 320, that a participant in a sport breaches a duty of care to a coparticipant only by intentionally injuring the coparticipant or engaging in "conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." Based on this rule, Kachan argued that Sesto had assumed the risk of harm from a collision with a snowboarder because inadvertent collisions are an inherent risk in the sport of recreational skiing and there was no evidence that Kachan had intended to collide with Sesto or acted recklessly.

Additionally, Kachan contended that the nature of the sport of "skiing" would be fundamentally altered if a "skier" could be found liable for inadvertently colliding with another skier while attempting to ski close to that skier. ¹ He explained that "[p]art of the enjoyment of skiing with friends and family is the camaraderie of talking to each other as one skies down the hill . . . ." Finally, Kachan argued that local ordinances, such as a " `Skier Responsibility Code,' " would not impose a higher duty on a "skier" because the California Supreme Court in Cheong v. Antablin (1997) 16 Cal.4th 1063, ruled that a skier responsibility code does not modify the common law defense of assumption of risk or create a statutory cause of action for violations of the code.

3. Opposition to Motion for Summary Judgment

Sesto argued that the motion for summary judgment should be denied because Kachan had failed to meet his burden on summary judgment to make a prima facie showing that she, as a skier, assumed the risk of a collision caused by another snowboarder's attempt to touch her buttocks. To support this argument, Sesto submitted a declaration in which she stated on the basis of "knowledge and belief" that neither "intentionally touching other skiers while they are in motion" nor "buttocks touching" was an "ordinary activity involved in the sports of skiing and snowboarding."

Alternatively, Sesto asserted that even if the giving of a congratulatory pat on the buttocks of a fellow skier was considered an ordinary activity in the sports of skiing and snowboarding, a triable question of fact existed as to whether Kachan intended to offer Sesto a "congratulatory pat" or to "slap her buttocks in a non-congratulatory manner before crashing into her."

4. The Trial Court's Order

After hearing argument on the summary judgment motion, the trial court ruled from the bench that the motion would be granted for the following reasons: "So the fact that [Kachan] was speeding and may have been traveling faster than was safe for conditions does not make his conduct reckless. [¶] His intention to make physical contact would also not necessarily make [Kachan's] conduct reckless, even though this is not a contact sport. [¶] So we have combined factors of speeding and intent to make physical contact. It seems to me that [Kachan's] conduct was negligent but that it did not rise to the level of recklessness necessary to find that he breached a duty to [Sesto]. So I would grant the motion." However, in so ruling the trial court noted that the motion is "a close one and open for argument."

In its written order filed February 10, 2006, the trial court stated its ruling as follows: "The Court find that KACHAN'S conduct, while it may have been negligent, was not reckless so as to fall outside the scope of the risk one assumes when voluntarily engaging in the sport of skiing and/or snowboarding. [Sesto's] assumption of the risk of collisions with others...