Willig v. Mammoth Mountain Ski Area, C053715 (Cal. App. 1/27/2010)
| Decision Date | 27 January 2010 |
| Docket Number | C053715. |
| Parties | RAY PATRICK WILLIG et al., Plaintiffs and Appellants, v. MAMMOTH MOUNTAIN SKI AREA, Defendant and Respondent. |
| Court | California Court of Appeals |
Appeal from the Super. Ct. No. 14434.
Not to be Published
Plaintiff Ray Patrick Willig, an experienced snowboarder, alleged that a loose wire sticking up through the early season snow at Mammoth Mountain Ski Area (Mammoth) caused him to fall and sustain devastating personal injuries. The ski patrollers who responded to the accident testified they found plaintiff perched on a rock amidst other rocks several hundred feet above the wire, which was discovered three weeks later after nine inches of snow had melted. Plaintiff's ski companion testified, however, that he found his friend at a location below the wire. The jury found that, although Mammoth committed willful misconduct, the wire protruding from a gabion (an erosion control device) did not cause plaintiff's injury.
On appeal, plaintiff complains that the trial court's summary adjudication of his gross negligence cause of action compelled him to present evidence that the loose wire from the gabion alone caused his injury. Not so. Long before the ruling on summary judgment, plaintiff alleged the wire from the gabion caused him to fall. Despite the ruling precluding a cause of action for negligence, plaintiff was allowed to introduce voluminous evidence of gross negligence—that Mammoth had failed to pre-ski the run, failed to follow many of their policies and procedures, and failed to assure that the run was free of hazards. But in the face of a jury verdict for the defense on causation, plaintiff now blurs his theory of liability with his theory of causation, blaming his failure to prevail on causation on the court's ruling that he needed to prove willful misconduct, which, in fact, he did.
We conclude the ruling on the theory of liability was separate and distinct from causation, and plaintiff has failed to demonstrate prejudice, that is, how the pretrial ruling limited, circumscribed, or otherwise precluded him from proving what actually caused him to fall. We also reject his claim of prejudicial juror misconduct and affirm the judgment.
No one saw what, if anything, caused 36-year-old Ray Willig, an advanced snowboarder, to fall on an intermediate ski run on the morning of November 11, 2000. The weather was sunny, and there was a snow base of between 18 and 24 inches covered with fresh powder. Plaintiff had purchased a new snowboard for the season. But while skiing down the St. Anton ski run a second time that morning at about 25 to 30 miles per hour, plaintiff's snowboard hit something and he somersaulted forward. During the fall, the snowboard's tail slammed into the snow, the board flexed, plaintiff was thrown into a second somersault, and he landed on his back. As a result, his lower body is paralyzed.
Plaintiff did not see what he hit. Nor did Robert Mayer, his skiing companion that morning, his employer for over 10 years, and his best friend. Mayer had stopped to adjust his bindings and did not see plaintiff fall.
No one disputed that if the wire looked as it did three weeks later, that is, if loose wire from the gabion stuck up through the snow in the middle of the ski run, it would be a hazard to skiers and should be repaired or marked. However, the issue was not whether the gabion was dangerous if exposed, but whether plaintiff's fall occurred above or below the gabion and thus whether the wire from the gabion caused plaintiff to fall.
Plaintiff filed suit in the United States District Court for the Eastern District of California on November 9, 2001, and in the Mono County Superior Court on April 3, 2002. Both his federal and state complaints contain identical allegations that he fell because he hit loose wire from an erosion control device. The complaints allege: There is no allegation that a bare spot, a log, a rock, or any other natural or man-made hazard caused plaintiff's injury.
The federal complaint was dismissed for lack of diversity. The state complaint alleged three causes of action: for negligence, willful misconduct, and loss of consortium.1 The trial court granted summary adjudication of the negligence claim because plaintiff had signed an express release of liability when purchasing his annual ski pass. The liability release provided, in pertinent part:
Before trial, the Second District Court of Appeal ruled in City of Santa Barbara v. Superior Court (2006) 135 Cal.App.4th 1345 that a general release did not relieve a defendant of liability for gross negligence. After the Supreme Court granted review (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747 (City of Santa Barbara), the trial court decided to reaffirm the summary adjudication ruling and the case was tried only on a liability theory of willful misconduct.
At 10:43 a.m. another skier alerted Michael Martyr, a ski patroller stationed at the top of ski lift chair 1, that a skier was injured on St. Anton. Martyr, who was no longer employed by Mammoth at the time of trial, testified he skied down with a rescue toboggan and located plaintiff on skier's right on the upper portion of Lower St. Anton, a few hundred yards above a curve in the run. It was obvious to Martyr that plaintiff had sustained serious injuries and needed immediate medical attention. Martyr stomped a platform in the snow below plaintiff to secure his toboggan. Walking up to plaintiff, Martyr sunk knee-to-waist deep in unconsolidated snow. The area was rocky.
Nick Bianchini was the second ski patroller to respond and to assist Martyr. He, too, had difficulty walking at the scene and sank up to his thighs in the snow. Because plaintiff was lying on top of a rock, Bianchini and Martyr were able to scoop snow out from under him and slide a backboard underneath him to stabilize his spine. By the time they evacuated the patient, the loaded toboggan weighed 250 to 260 pounds and left distinct tracks in the snow.
Martyr testified he delivered plaintiff to the ambulance awaiting his arrival less than 30 minutes from the time he was notified of the emergency. He readily admitted that in attending to the critical needs of his patient he did not interrogate him about the cause of the accident, nor did he follow all the mountain policies for marking the scene of the accident or recording information from the victim in his report. Bianchini also testified that Martyr's report fell short of the specificity needed to identify the exact location of the accident.
Neither plaintiff, his friend, nor the ski patrollers saw any wire on the day of the accident.
Mammoth required its ski patrollers to ski down St. Anton every morning inspecting for hazards and to sweep each run at the end of the day. Patrollers would normally ski the run numerous times a day. Nevertheless, there was no written record that any patroller had skied the run before plaintiff fell on November 11.
About four hours after the accident, Martyr and his supervisor, Laurey Ann Carlson, went back to the location where he had administered aid to plaintiff to take pictures of the scene. Martyr, a veteran patroller, was very familiar with the run and remembered where the accident had occurred. He skied to the location following the same route he had taken earlier and confirmed his recollection of the exact site by locating the boot marks, ski tracks, and other disturbances in the snow. Carlson photographed the area. Although fog had settled on the mountain, Martyr had no difficulty locating the site. Based on her 22 years of experience as a ski patroller, Carlson also testified the snow disturbances appeared to be a toboggan platform, boot prints, and ski tracks. At trial, both Martyr and Bianchini testified that Carlson's photographs captured the first aid scene.
Plaintiff's father hired a private investigator, Paul Burns, to visit the scene of the accident with Mayer three weeks later. Burns admitted at trial he had never investigated a ski accident. He had been terminated by the Gardena Police Department 30 years earlier for failing to follow departmental rules and regulations. He was also forced to resign from the Mono County Sheriff's Department in 2000. In a letter to another investigator, whom plaintiff's father contacted before he hired Burns, he told him that plaintiff had collided with a "log under fresh powder snow."
Mayer accompanied Burns to help him locate the accident site on December 2, 2000. In the three weeks since the accident, there had been nine days of high temperatures in excess of 45 degrees. As a result, nine inches of snow had melted. Nevertheless, Mayer felt confident he was able to identify the correct location because he remembered seeing chair 12 while waiting for the ski patrol to arrive. Chair 12 was also visible from the location identified by the ski patrollers. Mayer testified in deposition, portions of which were read at trial, that in looking around on the morning of the accident to see what might have caused plaintiff to fall, he noticed a bare spot near the middle of the run and assumed plaintiff had hit it.
Plaintiff's private...
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