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Bad Calif Court of Appeal opinion re skiing

post #1 of 115
Thread Starter 
The California Court of Appeal recently held that when skiers and snowboarders share a mountain and a given run on that mountain, the snowboarder owes the skier NO DUTY OF CARE, mainly because the skier is said to "assume the risk" that others may ski dangerously and without any duty of care. The only way the boarder could be held liable for skier's injury would be if he INTENTIONALLY ran the skier down. Ludicrous, or what?

For the whole opinion, go here -- http://www.courtinfo.ca.gov/opinions...ts/F034825.DOC

Of course, this runs directly contrary to the Skier's Safety Code.

The snowboarder at issue was traveling at about 30-35 mph when he collided with the skier. He admitted that he didn't even see the skier, who was DOWNHILL from him. The skier suffered a severe knee injury.

Sounds a bit like the Nathan Hall case, except that the skier here didn't die, and the uphill, out-of-control rider was on a tongue depressor and not two planks.

I feel badly for those of you who ski in California -- AC, Ryan, NCSkier et al. This lousy opinion is ridiculous.

post #2 of 115

how does the law differ in your parts? what's different at Lost Trail?

THIS on "duty of care":


i wonder if the skier owes the snowboarder DUTY OF CARE (as i understand it; the scout version prob'ly ain't the legal version) by understanding the boarder's blind side and always keeping that in mind when skiing amidst and amongst 'em.
post #3 of 115
This decision does sound like a tragedy, but in our court system it is usually the person with the most money and power that sways the decision. Sounds real anti-American, but I would guess that there was a lot of pressure put on somebody to get that decision made. :
post #4 of 115
What's the bad decision? The plaintiff did not offer any reasonable evidence that the snowboarder was being reckless. And the plaintiff gave up the reckless argument on appeal. It just looked like the plaintiff had a weak case. This is what I found most interesting: Mastro defines "the sport" however, as skiing, and therefore concludes that because snowboarding involves different risks than skiing that a snowboarder's mere presence on a slope utilized by skiers increases the risks to skiers over and above those risks inherent in the sport of skiing. We do not doubt this may be true
post #5 of 115
So if I understand that correctly they are saying that the skier’s responsibility code is akin to any other sports rule?

To some extent I can see that. Who want’s to be held civilly liable for a basic foul at a YMCA basketball game? But then again, there are some other sporting rules (not statutes) that are a little more weighty i.e. don’t point a firearm at anybody.
post #6 of 115
I don't know if the decision is that outrageous. The court simply held that skiing and snowboarding are not two different sports when determining whether the injured party assumes the risk. Just as a snowboarder does not owe a skier a duty of care, a skier does not owe a snowboarder a duty of care.

Of greater concern is the court's decision that no reasonable person could find that the snowboarder's conduct was reckless. Sounds like the defendent did a poor job of producing evidence of the snowboarder's reckless conduct, but it's still a bit surprising to me that the question of recklessness would not go before a jury. I wonder what type of conduct is reckless enough to go before a jury?
post #7 of 115
Perhaps I'm missing something. Plaintiff did not offer evidence that the person who hit him was reckless? If you are in your car on a clear day and the person behind you slams into you, demolishes your car and causes you permanent, debilitating injury, then says he didn't even SEE you, doesn't such behavior by itself constitute negligence? If you are sharing a trail/road with other persons, do they not have the minimal obligation to at least be aware of you if you are directly in front of them and be under enough control to be able to avoid slamming into you? If you were the person hit from behind, would you just look up from the snow, your knee possibly ruined, and say, "Hey, no problem."? From this decision, it sounds like in California, you should. Again, am I missing something?
post #8 of 115
Interesting that conduct that would be criminal in Vail might not even give rise to CIVIL liability in Calif. Chronic may be right though that the California decision appears to leave plenty of room for future plaintffs to argue that their defendants' conduct was reckless. That said, CA and Vail are clearly on different pages, because as I remember the tv broadcast on the Hall case, that jury found that Hall was not reckless but still found him guilty of crime. Anybody know the status of the Hall appeal?
post #9 of 115

Your post makes perfect sense but you are missing one critical point. If the courts rule in the plaintiff's favor then it sets precedence that could have ugly consequences, such as requiring everyone to carry liability insurance in case they hit somebody else - intentionally or not. In Canada one can sue for damages in a car accident, but only up to the amount covered by the liability insurance (which is now at a minimum of 500K, I think).

Do we really want skiing to be "in the same boat" as driving a car?
post #10 of 115
Tom B, the answer to your last question is that some of the Bears want the slopes to be regulated like auto accidents, and some do not. Someone help me out with a link to the lenghty threads on the Hall case.
post #11 of 115

I seem to recall that you are an Esq. Well, sorry to tell you buddy, but you just flunked your California Torts exam. Relying on the case of Knight v Jewitt, a case which is beneficial for ski resorts, the court held that co participants in a sport can't sue one another unless the conduct involved is intentional or reckless. Big difference between "intentional" and "reckless" and thus your statement that there can be no liability on the part of the boarder unless he/she intentionally attepts to injure the other party is incorrect.

You must be a transactional lawyer. Don't quit your day job.
post #12 of 115
Thread Starter 
I think that a number of you folks misread the opinion.

Miles and others -- the issue wasn't whether he was reckless, nor whether he offered proof of recklessness. Why do you folks think it was?

Ryan -- to the best of my knowledge, our local law (Lost Trail is 1/2 in Montana and 1/2 in Idaho) is the same as the skier's safety code. In other words, the uphill rider must exercuse due caution to avoid hitting a dowhill rider. However, if the downhill rider makes collision inevitable, the mere fact of being uphill doesn't make the uphill rider at fault.

Here's what I find absurd: Under the CA App Ct's reasoning, injury resulting from being hit by one who is negligently (NOT recklessly) riding uphill from you, is not different from being injured playing high school football. THAT, my friends, is ludicrous. Football has CONTACT as one of its primary AIMS. Skiing is NOT a contact sport.

Does any of you disagree with me? If so, why? I'd like to better understand the thoughts behind the CA App Ct's ruling. :

Herman -- where did I say that I was trying to be a Californicator Attorney? I have no desire to belong to the CA Bar. In case you didn't know this, MD and NJ (where I am admitted) and MT (where I am taking the exam Feb 2002) do not test on CA law. So, what's your point?

Also, I don't see what Knight has to do with the particular situation. This was not a case of skier vs. ski area. It was skier vs rider, with the issues more closely being uphill vs downhill, negligent or not negligent?

As for day jobs... go pound sand, please. You misread the case I cited to, and you misunderstand the CA law which you say, and attempt to "prove," that I don't know.
post #13 of 115

i don't know the law but i'm not that quick to see that high school football, for example, IS that different from downhill skiing, in that - this is very simple, i know - BOTH assume the possibility of injury, due to the nature of the activity. again, not to quibble; i really don't know. my reasoning, though, has to do with assumed risk, the legal definition of which i haven't much of a grasp on.
still, playing football, the "contact" sport, assumes some inherent risk. isn't this true with skiing, and isn't this stated fairly explicitly on the back of the ticket? what'm i missing? you don't plan on being clobbered like a running back getting hammered by a safety; but you do assume the distinct possibility of out-of-control skiers and trees and rocks that win when you hit 'em.

further, i wonder how much ski-related law is clear. there seem so many murky variables and exception to every rule. one accepts the risk and so runs the risk but at the same time the mountain is responsible - yes? no? - for creating a reasonably safe environment in which, say, the rules of the mountain (downhill skier/boarder has right of way, etc.) are communicated and enforced.

wonder if this was the source of golf rules having the duffer "away" hit first. otherwise, a lot of fairway collisions.

prob'ly not.
post #14 of 115

Did you go to the University of Stupid?

Listen chump, you posted the following statement summarizing the case:

<BLOCKQUOTE>quote:</font><HR>The only way the boarder could be held liable for skier's injury would be if he INTENTIONALLY ran the skier down. Ludicrous, or <HR></BLOCKQUOTE>

Well, junior, that isNOTwhat the case holds...there is a significant difference in the law of torts between "intentional" and "reckless" conduct. You not only failed to grasp the distinction, but disseminated your ignorance to a wide audience. Its distressing enough to see laypersons do this, but another lawyer???? Shame on you.

As to not being taught California law, those concepts are based in common law and are taught at any school which doesn't pass out their degrees with a free bowl of soup. Not to mention subject to being tested on the Multistate (better study up son)....

Now as to your last gaffe:

<BLOCKQUOTE>quote:</font><HR>As for day jobs... go pound sand, please<HR></BLOCKQUOTE>

As you know, pounding sand, a material which is highly resistant to compaction, is an exercise in futility. I, however, don't need to engage in that conduct; instead I can attempt to explain basic legal concepts to a dolt. Same effect. Similarly, let me suggest that you engage in some physically impossible (unless you are a hemaphrodite) sexual activity. Go draft a will or something. :
post #15 of 115
<BLOCKQUOTE>quote:</font><HR>Originally posted by Herman:
As you know, pounding sand, a material which is highly resistant to compaction, is an exercise in futility snip.....:

Damn, I should have known better than posting on this topic, now Gonz and Herman are debating soil mechanics..... Turnabout is fair play I guess.

the geotechnical engineer.....
post #16 of 115
Thread Starter 
Herman - not surprised that you would have such a big inferiority/superiority issue(same thing, one is internal, the other external). If my parents named me Herman, I'd feel pretty insignificant too. Cheer up, though, because there's a bright side to this -- at least your name isn't Sheldon or Isidore.

As to your continued rant on my supposed "stupidity," I just laugh and laugh and laugh. I guess you think yourself some kind of authority on the law. I hope you don't teach in any law schools or universities, and I sure hope you don't practice law. Your twice-shown inability to read and interpret a pretty clear case has me fearful for anyone who places their trust in your legal ability. Now please, get back to smacking your fist against pulverized rock. :

Ryan, I agree that skiing entails some assumed risks. In fact, I am the first one to argue AGAINST holding ski areas liable to persons injured while skiing. But the case at issue is not that type of case. It is about a snowboarder proceeding downhill with a skier downhilll from him, while being negligent yet not reckless. As Bob Barnes and I both asserted in the threads re Nathan Hall, if you are not able to stop when you see someone downhill from you, that's a pretty good sign that you're not in control FOR THE CONDITIONS AT HAND -- which conditions include encountering a person downhill from you.

I am not saying that every skier/boarder, boarder/boarder, or skier/skier collision resulting in an injury deserves a lawsuit for damages. In fact, that is a nightmare! Instead, I think that each case offers its own opportunity to clarify legal obligations. And, I think that it's illogical to make the "slippery slope" argument that "dangerous precedent" would be set in every such case. If the opinion clearly rules on only a particular set of facts, and says it has no broad application to general situations, it has precedential value only for circumstances sufficiently identical to warrant a claim of precedent.

Ryan, I think if we discussed this further, we would find ourselves more in agreement than disagreement. [img]smile.gif[/img]

Herman, sorry -- I can't say the same to you.
post #17 of 115

I suspect you're right. I just don't know enough about the specifics; again, the whole arena seems tailor-made for those with litigation in their hearts.
MY take, law or not, is that if you're uphill, it's all on you. if you can't steer/turn or stop, it's on you. The downhill skier/boarder is SUPPOSED to look downhill and CAN'T be expected to watch their back at the same time. If you're uphill from me, YOU'VE got my back.
post #18 of 115
ryan, it is the intent of the football players to make contact with each other (unless you have the ball), but even then there are rules. You can't blast someone that is ob without a penalty or removal from the playing field. From what I understand of the skiers/riders code you are to take every precaution so as not to make contact. After that the water gets murky. If you are skiing too fast or not in control is it because you have a disregard for others or did you get going faster than you intended and don't know what to do.
post #19 of 115
<BLOCKQUOTE>quote:</font><HR>Originally posted by gonzostrike:

As to your continued rant on my supposed "stupidity," I just laugh and laugh and laugh.[So does a does an ADD kid overdosed on ritalin] I guess you think yourself some kind of authority on the law.[ I not only think I am, I am] I hope you don't teach in any law schools or universities, and I sure hope you don't practice law.[Actually I do practice, and quite successfully, thank you] Your twice-shown inability to read and interpret a pretty clear case has me fearful for anyone who places their trust in your legal ability.[I didn't misinterpret anything; you made a grossly incorrect statement, and now can't 'fess up to it. Talk about feelings of inadequecy...I think you have Costanza's disease of the intellect] Now please, get back to smacking your fist against pulverized rock.[I'm doing the equivalent right now...]

Herman, sorry -- I can't say the same to you. [You can't fathom how upset I am about that]
post #20 of 115
Thread Starter 
hermie boy, go read the opinion again. you may disagree with me, but I am not wrong. I just read it differently. apparently, Hermie's School of Logic and Rectitude (or whatever you call it) doesn't accept differences of opinion. pity. :

oh, and you are completely in error as to the applicability of Knight... you and the Ct App both err on how Knight is in any way analogous to skiing.

I can only guess that the Ct App don't know much about the Skier's Safety Code and/or courtesy. But I'm not surprised... they're Californicators, fer cryin' out loud!
post #21 of 115
Speaking from a layman's point of view, that is without Herman's or Gonzo's legal background, the courts findings seem incongruent with the case. IMHO, Mastro missed the boat in the points he presented to the court and, it would seem, he clearly didn't make it past the Knight case findings, which it would seem holds the key to this case.

<BLOCKQUOTE>quote:</font><HR>Under the duty approach, a defendant's participation in a sport does not merely preclude liability as to other "coparticipants," but rather his duty to others is determined by "the nature of the sport or activity in question and on the parties' general relationship to the activity." <HR></BLOCKQUOTE> Couldn't one argue that, under this test of Knght, the nature of skiing is to avoid hitting other people and the Skier's code defines that? And that the "nature of the sport" is to avoid other people and obstacles?

<BLOCKQUOTE>quote:</font><HR> Put more generally, one who is pursuing his sport in an appropriate venue owes no duty of care to those who choose to occupy the same venue to engage in their (possibly different) activity simultaneously<HR></BLOCKQUOTE> So, how does this tenet of Knight work with the above test?

<BLOCKQUOTE>quote:</font><HR> Finally, as set forth more fully below, we note that we do not dispute Mastro's contention that Petrick had a duty of care not to "increase the risks to a participant over and above those inherent in the sport." <HR></BLOCKQUOTE> which would seem to say that they agree with the Skier's Code which is in place to ensure that your activity in the sport does NOT "increase the risks to a participant over and above those inherent in the sport.".

<BLOCKQUOTE>quote:</font><HR> Finally, Mastro introduced extensive evidence below regarding the Skier Responsibility Code and its application to the determination that Petrick acted recklessly by skiing "too fast" and "out of control." He has abandoned this theory on appeal and it, too, is considered waived. In any event, to the extent Mastro contends that the Skier Responsibility Code provides for a higher duty of care than called for by Knight such a theory is expressly contrary to Knight. In Knight the court recognized that the "rules" of a game are likely to be negligently or carelessly broken and that is exactly the activity for which a sports participant will not be liable. (Knight, supra, 3 Cal.4th 296.) The Skier Responsibility Code is not a statute and essentially simply constitutes the "rules of the game" of skiing or snowboarding. <HR></BLOCKQUOTE> So, despite what we said earlier, even though Mastro didn't try to use this argument in his appeal, even if he did we would have thrown it out. : Which is why Mastro probably didn't try this argument in the appeal. He knew it wouldn't go anywhere.
post #22 of 115
Here's the Hall link - http://www.epicski.com/cgi-bin/ultim...c&f=2&t=001128

It seems like one difference between the Colorado decision and the California decision is that CO considered the skier's responsibility code as law while CA did not.

I agree with the CA decision. To rule in favor of the skier denies the inherent risks of the sport and could result in the future need to carry "skier's" insurance, which nobody wants.
post #23 of 115
Thread Starter 
Tag -- great points, and I agree completely. Originally I composed a post at 6:20 last night, using quoted excerpts from the Ct App opinion, making mainly the same points you have made. For some reason, my computer lost the text in the attempt to post it to the board. Rather than re-draft the whole thing, I used the shorter response posted at 6:23.

Jaws -- how do you get from the point of being responsible for (a) avoiding downhill skiers/boarders, and (b) skiing safely within one's ability and control, to the endpoint of "needing skiing insurance"? Do you assume that skiing will become a strict liability sport, in which one skier automatically will be at fault in every collision on the slopes? If so, please explain the logical thread running through your analysis. I don't see the connection, and would like to understand it -- because, like you, I think that such strict liability and "skiing insurance" would be horrible.

post #24 of 115

I'll try to explain my logic. According to Knight, the rules of the game, in this case the Skier Responsibility Code, are not statutory, so when a sports participant violates these rules, they can not be held liable. So, when Petrick hit the skier below, he was careless and negligent in his use of the Skier Responsibility Code, but he can not be held liable for violating the rules of the game.

If a sports participant COULD be held liable, that brings to the table many unseemly possibilities, like someone suing me because I slammed into them after being cut off on trail, or maybe catching an edge briefly and losing control for a moment, or maybe my ski popped off and the ski wacked someone, or I hit a patch of ice and wiped out, taking someone down. Different scenarios, but similar in debate. This kind of litigation could quickly snowball to the point where we need insurance to cover our liability. Otherwise, a trip to the slopes could result in our financial ruin. That is why I think the ruling is appropriate. Skiing is inherently risky, and the risks are assumed by the holder of the pass.

I don't pretend to know the law like you and some of the others, and I may be missing something, so I'm open to more discussion. And I do think we all should read, understand and obey the Skier Responsibility Code, but I just don't think we should be help liable for violating the code under normal circumstances. I think there are situations where someone could be held liable, like skiing a closed trail and hitting someone upon re-entry, but that presents extenuating circumstances.
post #25 of 115
Thread Starter 
Jaws, thanks for the reply. I understand what you are saying. Here's my return question for you to consider -- how does our present liability framework prevent the lawsuits that you fear?

It seems to me that the lawsuits you fear are possible right now... but will not likely succeed in CA, at least at the Ct App for the 5th District.

In my mind, the Skier's Responsibility Code (I mistakenly called it the Skier's "Safety" Code) sets forth a skier's obligations to be prudent and safe, yet still gives plenty of room for a skier/boarder to ride aggressively. The Mastro/Petrick court seemed to think that the Code would PROHIBIT aggressive riding. I disagree, quite strongly. :

Also IMHO, if you hit a patch of ice that was more latent than easily seen, and as a result lose control and hit another skier, you have not been careless and haven't violated the SRC. Those are the type of risks that one assumes when buying a lift ticket and skiing or boarding. Speaking only for myself, however -- I do NOT assume the risk of some Nathan Hall skiing out of control at speeds he can't handle and then colliding with me and destroying my knee or even killing me.

So, what is the CA Ct App saying? That its decision is a generally applicable rule UNLESS the injury is so severe they decide to be more flexible in applying the rule? Or, would the Ct say that if the Nathan Hall case were in CA, Mr Hall would have been free from all types of liability to Mr Cobb's family etc?

My take on the Mastro/Petrick decision is as I stated in my opening post... as a result of the decision, the only way a fellow skier/boarder is liable for injuring you in a collision is when he INTENTIONALLY hits you.
post #26 of 115
What will bringing in a new law achieve?
More work for lawyers and more liability insurance premiums perhaps. Would it make the slopes more or less safe?

What would discourage the offenders (afterall isn't this what people want)?

What would be a fair punishment for you if you were guilty?

post #27 of 115
Was or should their decision be based on the responsibility code? The code was developed by a private organization, not through public legislation. I don’t see how a court is required to use the code when considering liability.

The responsibility code may be considered by a court, but it’s not law unless it’s in your state code IMHO.

My $0.02
post #28 of 115

You know, I don't necessarily disagree with an argument that the extension of the primary assumption of the risk to co participants in recreational activities is not sound policy...I can see arguments on both sides. What I do disagree with is your initial description of the case holding that only an intentional act under these circumstances would survive assertion of the affirmative defense of primary AOR. The case doesn't say that.

So maybe you didn't go to the University of Stupid...only the University of Overstatement.

As to the Skier Responsibility Code...even if it were codified as state law and a skier/boarder were shoiwn to have violated it, in a civil action that would only establish negligence. A negligent act, however, if subject to primary AOR, is not actionable. That does not mean, though, that the same act could not be considered "reckless" or "intentional". Those types of conduct are deemed to be more culpable than merely negligent acts and are not barred by primary AOR.

The reason the plaintiff in this case did not survive summary judgment, which would have required only that he show the existence of an issue of fact which the judge felt was properly a jury question, was that he produced no admissable evidence that the boarder was acting, at least, recklessly.
post #29 of 115
Thread Starter 
<BLOCKQUOTE>quote:</font><HR>What I do disagree with is your initial description of the case holding that only an intentional act under these circumstances would survive assertion of the affirmative defense of primary AOR. The case doesn't say that.<HR></BLOCKQUOTE>

No, the appellate panel were too clever to come out and say that, Hermie. But it's still the end result, IMHO. You may be able to persuade me otherwise, if you could just explain to me the situations in which -- under the Ct's decision -- Petrick would've been liable to Mastro for the collision causing Mastro's knee injury.

I don't see any other than voluntary recklessness leading to collision. Maybe I'm missing something...? :

<BLOCKQUOTE>quote:</font><HR>The reason the plaintiff in this case did not survive summary judgment, which would have required only that he show the existence of an issue of fact which the judge felt was properly a jury question, was that he produced no admissable evidence that the boarder was acting, at least, recklessly.<HR></BLOCKQUOTE>

Ahhh, but he did offer such evidence, Hermie. Tag cited to the relevant part of the Ct's opinion in his post above. The Ct dismissed the expert opinion, calling it "circular" -- funny stuff, coming from a panel that considered directly applicable an opinion regarding a SPECTATOR being hit by a pro baseball player's innocently thrown bat.

Again, I emphasize -- I want nothing to do with the CA Bar. It's clear that the various CA courts have their own peculiar agendas -- some conservative, some liberal, some centrist, some just plain WHACKED. My only connection to CA will be if I ever have a case before the 9th Cir.
post #30 of 115
Let's beat this horse just a little bit more:

You are missing something...that being the distinction between "reckless" and "intentional". An "intentional" act (note...not "voluntary") is a wrongful act which the actor intends to accomplish both as to the act and the result; ex: Gonzo, in a cowardly display, punches Herman in the mouth when Herman is not looking. A "reckless" act is one which the actor knows or should know carries with it a substantial certainty of significant harm to other persons or their property; ex.: Gonzo, seeing Herman standing at the bottom of a run minding his own business speeds toward him intending to pull off a hockey stop inches away, covering Herman with snow; Gonzo, however, lacking the skill to pull off the stunt crashes into Herman.

The above are hypotheticals only. The names have been changed to protect the innocent.

Now, as to whether you think evidence of recklessness was presented...you may be right, the appellate court may have got that part wrong. But, the appellate court did not hold that with respect to co -participants in a recreational sport setting, only intentional conduct is actionable.

I'll send you a bill for my assistance in your studies for the upcoming bar.
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