Vine v. Bear Valley Ski Co.

• Decision Date: 11 May 2004
• Docket Number: No. A099536.,No. A099647.,A099536.,A099647.
• Court: California Court of Appeals Court of Appeals
• Parties: Charlene VINE, Plaintiff and Respondent, v. BEAR VALLEY SKI COMPANY, Defendant and Appellant.

13 Cal.Rptr.3d 370

118 Cal.App.4th 577

Charlene VINE, Plaintiff and Respondent, v. BEAR VALLEY SKI COMPANY, Defendant and Appellant.

No. A099536.

No. A099647.

Court of Appeal, First District, Division 3.

May 11, 2004.

Rehearing Denied June 3, 2004.

Review Denied August 25, 2004.^*

Paul D. Nelson, Paul J. Killion, Michael L. Reitzell, Hancock Rothert & Bunshoft, Peter J. Koenig, San Francisco, Tucker Ellis & West, for Appellant Bear Valley Ski Company.

Michael S. Danko, Menlo Park, Gary L. Simms, Niall G. Yamane, Redwood City, O'Reily Collins & Danko, for Respondent Charlene Vine.

PARRILLI, J.

In personal injury cases arising from sporting activities, a defendant cannot be charged with a duty to protect the plaintiff from risks inherent in the sport. Those risks are borne by the plaintiff as a matter of law, under the "primary assumption of risk" doctrine. However, the defendant can be held liable for breaching the duty not to increase the risks encountered by the plaintiff beyond the level inherent in the sport. This is an aspect of "secondary assumption of risk," which operates as part of the comparative fault scheme. The plaintiff's acceptance of the risk is weighed together with the defendant's breach of duty as the trier of fact determines the parties' relative responsibility for the injury. (Knight v. Jewett (1992) 3 Cal.4th 296, 314-316, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004, 4 Cal.Rptr.3d 103, 75 P.3d 30 (Kahn); American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 36-37, 93 Cal.Rptr.2d 683.)

Here, a jury was asked to determine whether a ski resort "was negligent in the design, construction, testing, or supervision of the snow board jump on which plaintiff was injured." The trial court refused to instruct the jury on assumption of risk, instead giving ordinary negligence and contributory negligence instructions. This was reversible error. Although assumption of risk has been "merged into the comparative fault scheme" in its secondary aspect (Knight, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696), the doctrine still poses distinct questions regarding the parties' relative responsibilities. These questions must be properly framed for a jury.

We also hold that ski resort employees who are not covered by workers' compensation for injuries sustained while participating in recreational activity on their own initiative may not claim the protection of Labor Code section 2801. That statute bars employers from raising assumption of risk as a defense in negligence actions by employees injured in the course of their employment.

BACKGROUND

Charlene Vine suffered a broken back, resulting in paraplegia, when she fell while attempting a snowboard jump at an employee party hosted by her employer, Bear Valley Ski Company (Bear Valley) after the end of the public ski season. A Bear Valley employee had reshaped the jump, using a snow cat, for use by guests at the party. Vine sued Bear Valley, contending the jump was a dangerous condition that increased the risks to snowboarders beyond those inherent in the sport. A jury awarded her $3,727,000 in special damages and $713,000 in noneconomic damages. Vine moved for a new trial on noneconomic damages. The trial court granted the motion, but ruled the judgment would be affirmed if Bear Valley accepted an additur of nearly $5.3 million in noneconomic damages. Bear Valley rejected the additur and appealed from both the judgment and the order granting a new trial. We have consolidated the two appeals.

We discuss further procedural and factual details below, in connection with the issues raised by Bear Valley. Bear Valley contends the trial court erred by: (1) ruling in limine that workers' compensation was not Vine's exclusive remedy; (2) denying Bear Valley's motion for summary judgment based on a release executed by Vine; (3) denying summary judgment based on primary assumption of risk; (4) failing to instruct the jury on primary assumption of risk, secondary assumption of risk, or "the obvious hazard doctrine;" and (5) granting a new trial on noneconomic damages. Because the instructional error requires reversal, we need not address the propriety of the new trial ruling.

DISCUSSION

1. The Workers' Compensation Bar

Bear Valley first raised the workers' compensation issue in a motion for summary judgment. The court denied the motion, finding triable issues of fact as to whether Vine was in the course and scope of her employment at the time of the injury, and whether she was exempted from the worker's compensation scheme by Labor Code section 3352, subdivision (f). Under that provision, "[a]ny person employed by a ski lift operator to work at a snow ski area who is relieved of and not performing any prescribed duties, while participating in recreational activities on his or her own initiative" is not an "employee" for workers' compensation purposes.

The parties revisited the issue in a jointly filed pretrial motion, asking the trial court to determine whether Vine's remedy was limited to workers' compensation based on the following stipulated facts:

"[P]laintiff's injury was sustained in the course and scope of her employment.

"Plaintiff was defendant's employee.

"Plaintiff was injured during a corporate function.

"The corporate function was an employee party.

"Plaintiff's accident resulted from her engaging in a recreational activity (snowboard jumping).

"The recreational activity was part of the party's entertainment.

"Plaintiff was providing working assistance at the party before she went snowboarding.

"Defendant re-shaped portions of the jump on which plaintiff was injured specifically for the party.

"The ski area was not open to the general public on the date plaintiff was injured.

"Eric Bottomley is the Vice President of Operations for Bear Valley Ski Company.

"If Charlene Vine and Eric Bottomley were called to testify, they would testify as per the attached."

"Eric Bottomley, if called to testify, would also state that he had spoken with Charlene Vine in advance of the employee party about needing her help during the event."

The parties attached excerpts from the depositions of Bottomley and Vine. Bottomley testified that employees were not required to attend the party. Vine had agreed to help him as a volunteer with bartending and a raffle. After working for a while she was "just hounding and hounding" Bottomley to let her go snowboarding, and he finally agreed.

Vine testified it was the season-ending party for Bear Valley employees and their families. The facility was closed to the general public. She had not planned on snowboarding that day, but a contest had begun and "a couple of people had come up to me and told me there w[ere] no girls entered and they wanted me to go snowboarding." She changed into her ski clothes and took a couple of jumps off a small jump on the edge of a sun deck. People were cheering and someone was announcing over a microphone. Vine did not remember the circumstances under which she decided to go to a larger jump on a nearby hill, where her injury occurred. "I just remember there was a bunch of people headed toward the jump, and the next thing I remember is standing next to the jump...."

Vine contended she was exempted from the workers' compensation scheme by Labor Code section 3352, subdivision (f) because she was employed by Bear Valley to work at its ski area, and was snowboarding on her own initiative during a break from her bartending duties when she was injured. Bear Valley noted the workers' compensation statutes are liberally construed in favor of coverage. (Lab.Code, § 3202.) It argued that once Vine stipulated she was in the course and scope of her employment, she could not claim she was "not performing any prescribed duties" and "participating in recreational activities on ... her own initiative" within the meaning of Labor Code section 3352, subdivision (f). Bear Valley emphasized that snowboarding was an anticipated feature of the party, and Vine was encouraged to participate by her peers.

In response, Vine observed Labor Code section 3352, subdivision (f) was enacted in response to a Colorado Supreme Court decision holding that a ski resort bartender was in the course of his employment when he was injured while skiing during his time off, using his employee ski pass. (Dorsch v. Industrial Commission (1974) 185 Colo. 219, 523 P.2d 458, 460; see Northstar at Tahoe v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1481, 1485, 50 Cal.Rptr.2d 475.) Thus, it did not matter that she had stipulated she was in the course of her employment; the Legislature acted to exempt ski resort employees from coverage during off-hour recreational activity precisely because that activity might be considered part of "the course of their employment."

The court agreed with Vine, and ruled that Labor Code section 3352, subdivision (f) exempted her from workers' compensation coverage. Bear Valley challenges that finding. It contends application of the statutory exemption to the stipulated facts is a question of statutory interpretation subject to our independent review.

At oral argument, Bear Valley suggested that once a ski resort employee arrives at an employer-sponsored party (assuming the party is within the course of the employment), all injuries suffered during recreational activities provided by the employer are covered by workers' compensation as a matter of law — that is, the activity cannot be considered to have been undertaken on the employee's "own initiative" under Labor Code section 3352, subdivision (f).

We disagree. Participation in the resort's recreational activities is a common feature of employment at ski resorts. The mere fact that the activity occurs at an employee-only party is not enough to take it out of the scope of the exemption provided by the Legislature specifically for such recreational...