Motion for Summary Judgment or Summary Adjudication

Moving Party: Defendant Mark Bialy

Responding Party: Plaintiff Debra A. Riley

Ruling: Defendant’s motion for summary judgment is granted.

A person generally owes a duty of due care not to cause an unreasonable risk of harm to others. (Civ. Code, § 1714; (Knight v. Jewett (1992) 3 Cal.4th 296, 315.) The doctrine of primary assumption of risk is an exception to the general rule. Primary assumption of risk “arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) Where primary assumption of the risk applies, it is a complete bar to the plaintiff’s recovery. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004.)

The California Supreme Court has ruled that primary assumption of risk may bar a personal injury action brought by a participant in a sport against a coparticipant because “ ’conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself….’ ” (Cheong v. Antablin (1997) 16 Cal.4th at 1063, 1068.)

Accordingly, as a matter of public policy, the following rules apply regarding the doctrine of primary assumption of risk. “[T]he general test is ‘that a participant in an active sport breaches a legal duty of care to other participants-i.e., engages in conduct that properly may subject him or her to financial liability-only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport.’ ” (Id. at 1068.) Thus, “defendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport.” (Kahn, 31 Cal.4th at 113.)

Physical contact with a coparticipant may be an inherent risk of a sport, because “ ‘[o]ne who enters into a sport, game or contest may be taken to consent to the physical contacts consistent with the understood rules of the game.’ [Citations.]” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 166.) The parties agree that it is established that the risks inherent in snow skiing include collisions with other skiers. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 467; Lackner v. North (2006) 135 Cal.App.4th 1188, 1202; Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1634.)

If a defendant moves for summary judgment on the ground of primary assumption of risk, “ ‘ “he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” [Citation.]’ ” (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 826.) “[W]hen the plaintiff claims the defendant’s conduct increased the inherent risks of a sport, summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the theory or establishes a lack of causation. [Citations.]” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740.)

Defendant has set forth facts showing that Defendant was not doing anything reckless or totally out of the ordinary activities of a skier. (Def. UMF Nos. 11, 13, 16, 17.) Defendant has met his initial burden to show that his conduct did not increase the inherent risks of skiing.

Because Defendant made a prima facie showing that justifies a judgment in his favor, the burden shifts to Plaintiff to show the existence of a triable issue of material fact. (Code of Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)

Here, the material facts are not in dispute. Plaintiff was skiing downhill. (Def. UMF No. 4; Pl. AMF No. 17.) Defendant was heading straight 5 seconds prior to the collision. (Def. UMF No. 10.) The first time Defendant saw Plaintiff was when Plaintiff was at a 90-degree angle perpendicular to him, heading downhill. (Def. UMF No. 12; Pl. AMF No. 16.) Defendant tried to move out of her way by trying to turn his skis, but was unsuccessful. (Def. UMF No. 13.) Plaintiff has not presented evidence of a triable issue of material fact. Even if it could be inferred that Defendant was skiing quickly and traversing perpendicular to a downhill ski trail, these facts do not establish conduct totally outside the range of ordinary activity involved in the sport of skiing. There is no evidence Defendant consciously and deliberately chose to ski in a manner that knowingly introduced risks of injury foreign to those inherent in the sport of skiing.

Further, skiing quickly and across fall lines is not outside the scope of normal skiing activities. (See Towns, 147 Cal.App.4th at 471.) Imposing liability for conduct such as Defendant’s will deter vigorous participation in the sport of skiing or otherwise fundamentally alter the nature of the sport. The doctrine of primary assumption of risk applies here.

Objections

Plaintiff’s objections are overruled.

Defendant’s objection no. 1 is sustained in part and overruled in part. The following portions of the Declaration of Raul Guisado are excluded: paragraph 5, “unsafe manner and speed;” paragraph 6, “Still, Mr. Bialy decided to traverse across Saddle Bowl trail without first making sure it was safe to do so.”;  paragraph 7; paragraph 8; paragraph 9; paragraph 10; paragraph 11; paragraph 12; and paragraph 13. Defendant’s objection nos. 2-6 are overruled as moot in light of the ruling on objection no. 1.

“In the context of assumption of risk, the role of expert testimony is more limited. ‘It is for the court to decide whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.’ [Citation.] A court in its discretion could receive expert factual opinion to inform its decision on these issues, particularly on the nature of an unknown or esoteric activity, but in no event may it receive expert evidence on the ultimate legal issues of inherent risk and duty. [Citations.]” (Towns, 147 Cal.App.4th at 472-473, fn. omitted [original emphasis].)

In Towns, the plaintiff sued the defendant after he collided with her on a ski run. (Towns, 147 Cal.App.4th at 465.) In opposition to the defendant’s motion for summary judgment, the plaintiff submitted the declaration of her expert, a member of the National Ski Patrol and a ski instructor. (Id. at 466, 471-472.) In his declaration, the plaintiff’s expert opined that the defendant’s behavior was reckless and “outside the range of the ordinary activity involved in the sport of skiing.” (Id. at 472.)

The appellate court affirmed the trial court’s decision to exclude the expert’s declaration in its entirety and granted the motion for summary judgment. (Towns, 147 Cal.App.4th at 472.) The Towns court noted the expert’s declaration “added nothing beyond declaring the undisputed facts in his opinion constituted recklessness. In short, he ‘was advocating, not testifying.’ [Citation.] He reached what in this case was an ultimate conclusion of law, a point on which expert testimony is not allowed. [Citation.] ‘Courts must be cautious where an expert offers legal conclusions as to ultimate facts in the guise of an expert opinion.’ [Citation.] This is particularly true in the context of assumption of risk where the facts are not in dispute. The trial court was well within its discretion to exclude [the expert’s] declaration.” (Towns, 147 Cal.App.4th at 473.)

The same is true here. Raul Guisado concluded that Defendant’s conduct was unsafe and “increased the risk of harm to skiers on the Saddle Bowl trail,” opined that the collision would not have occurred if Defendant took different actions, that Defendant was solely responsible for avoiding the collision, and that Defendant’s choices and conduct “increased the risks of harm inherent in the sport of skiing for skiers such as plaintiff.” (Guisado Decl., ¶¶ 5-13.) These portions of Mr. Guisado’s declaration add nothing beyond declaring, in Mr. Guisado’s opinion, Defendant’s conduct increased the risk of harm inherent in skiing.

Moving party to give notice.