Opinion
NOT TO BE PUBLISHED
Super. Ct. No. C050361
DAVIS, Acting P.J.
Plaintiff Mark Rommell appeals from the judgments of dismissal entered after the successful motions for summary judgment of defendants Bear Valley Ski Company (Bear Valley) and Mountain Adventures Seminars, LLC (MAS). He contends his cause of action for personal injuries is outside the scope of his express release of defendants for any claims of negligence or the doctrine of primary assumption of risk. We find the former to be determinative, and therefore do not reach the latter argument. As a result, we shall affirm.
Although plaintiff Rommell’s wife was originally another plaintiff, she apparently filed a voluntary dismissal of her claims in March 2006 (a filing not included in the record on appeal).
The operators of MAS (Aaron Johnson and Kimi Johnson) were also defendants, whom we include collectively in any reference to defendant MAS.
Scope Of Review
Under the “historic paradigm” for our de novo review of a motion for summary judgment (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734), we first identify the material issues framed in the pleadings. If the movant establishes prima facie entitlement to judgment in its behalf on these issues, we then consider whether the opponent has produced evidence creating a factual conflict with respect to any one of these issues that can be resolved only at trial. (Id. at pp. 734-735.)
The Pleadings
After receiving notice of the first motion for summary judgment, plaintiff moved for leave to file an amended complaint. As the proposed pleading did not change any of the material charging allegations, the trial court granted the motion and it became the operative pleading for purposes of the summary judgment motions.
In terms of facts, the complaint averred only that plaintiff was injured as a result of a collision and fall on the premises of defendant Bear Valley, on a run under the control of defendant MAS for purposes of a training seminar, without any warnings or barriers preventing its use by skiers. The complaint made conclusory assertions that defendants, “[w]hether in the manner herein alleged or in some other way,” created a “dangerous and defective condition” that increased the risks inherent in the sport of skiing, and this conduct was “negligent[], reckless[], careless[], grossly negligen[t], [and] wil[l]ful and wanton.” We therefore must turn to the evidence that defendants produced in support of their motions in order to determine the operative facts.
Defendants’ Evidence
Plaintiff is an expert skier who has obtained season passes to Bear Valley every year since 1978 or 1979, and who also worked there as a ski instructor from 1980-1996. In the spring of 2005, Bear Valley extended its season by a week, and plaintiff went skiing with a companion on Easter Sunday, the day before the season’s end on April 17, 2005.
In connection with obtaining his season pass, plaintiff Rommell executed a release in November 2004. Under the terms of this release, plaintiff attested to his understanding “that skiing . . . and other snow sports activities (referred to herein as ‘Activities’) are HAZARDOUS ACTIVITIES involving INHERENT AND OTHER RISKS of injury . . . . These risks include, but are not limited to [a laundry list of expected risks not material to this appeal]. There also is a risk of collisions with . . . obstacles, equipment and natural objects as well as with other skiers, snowboarders, and/or other participants in Activities at Bear Valley . . . . I further understand that injuries in the Activities are a COMMON AND ORDINARY OCCURRENCE, and I freely ACCEPT AND ASSUME ALL RISKS OF INJURY . . . as a result of my participation in the Activities at Bear Valley . . . . [¶] To the fullest extent allowed by law, I agree to RELEASE LIABILITY, INDEMNIFY AND HOLD HARMLESS Bear Valley . . . and all other persons or entities officially connected with Bear Valley . . . with regard to any and all liability . . . in any way resulting from[] personal injuries . . ., even if caused by NEGLIGENCE of Bear Valley . . . connected with my participation in Activities at Bear Valley . . . . I further AGREE NOT TO . . . SUE FOR INJURIES OR DAMAGES in any way connected with my participation in the Activities AND AGREE NOT TO . . . SUE FOR INJURIES OR DAMAGES.”
MAS provides year-round education and training seminars in outdoor activities on Bear Valley’s facilities. It has contracted with Bear Valley to provide backcountry guide services and skiing instructions to the latter’s patrons (in connection with which it lists Bear Valley as an additional insured on its insurance policy), and Bear Valley advertises these in its promotional materials.
“Kyle’s Run” is a short, steep ski trail intended for the most experienced skiers. It terminates in the base area near the ski area’s day lodge, from which various ski lifts (including the “Kuma” and “Koala”) originate. Its physical features and proximity to the day lodge make it a useful location for MAS to conduct mountaineering programs. The length of the run is visible from the base area and these two ski lifts.
In accordance with the terms of its use permit with the United States Forest Service, MAS planned to conduct mountaineering classes on Kyle’s Run on Easter weekend in April 2005, following the close of Bear Valley’s ski season. After MAS learned that Bear Valley intended to extend the season through that weekend, it arranged for its exclusive use of Kyle’s Run, paying a fee to Bear Valley in exchange. Bear Valley stated that its ski patrol would ribbon off the area for the use of MAS. MAS did not have independent authority to close off Bear Valley’s runs.
On her arrival at the base area on Easter morning, Kimi Johnson noticed that Bear Valley had not yet roped off Kyle’s Run. She and one of her MAS employees notified Bear Valley office personnel twice of the need to rope off the ski run before proceeding with the seminar, and may have told ski patrol two additional times. She did not have any reason to believe that Bear Valley would not follow through on the requests. She also believed that anyone walking through the base area or making use of the lifts near the ski run would have been able to see the mountaineers proceeding up the ski run.
Plaintiff Rommel and his companion had arrived at the ski resort around 9:00 a.m., and had been skiing for about three hours on runs in the upper mountains of the resort. He was fairly certain that before the ill-fated run they had used the Kuma chair to travel up the slopes because they were going to head over to the Koala chair for their final runs. However, his companion believed that they used the Koala chair for this final ascent. Plaintiff did not think that he noticed any hikers using Kyle’s Run as they ascended. After traversing the ridge, they proceeded down a run that ended near the start of Kyle’s Run.
Plaintiff and his companion had skied Kyle’s Run on numerous previous occasions. Plaintiff was aware that the run briefly levels out near the halfway point before becoming sharply steeper. This level area is about 150 feet wide. At Kyle’s run, plaintiff proceeded down the skier’s right side of the run about 30 feet ahead of his companion, who kept to the skier’s left side. They did not see any indication that the run was closed to skiers.
Reaching the level area, they saw a group of people in a semicircle about 50 feet above the lip of the steeper slope on the skier’s right side of the run. Plaintiff turned to the left to circle around them. Plaintiff had slowed to 10-15 miles per hour as he approached the lip, being aware of his responsibility under the skier’s code to look for and avoid a skier downhill from him; because he could not see over the lip, he needed to be prepared to maneuver around a sudden obstruction. As he passed over the lip, he had slowed to 5-10 miles per hour and saw a person hiking up the right side of the run in his path. Plaintiff easily veered more sharply to the left to circle around the hiker. He also noticed two other hikers on the left side of the trail. He did not anticipate having any problem veering back to the right to avoid them. In the meantime, however, his companion--who had not significantly slowed his speed approaching the lip--let out a shout when he saw the hikers on his side of the run. As plaintiff began a more immediate turn to the right after skiing around the hiker on his side of the run, he became entangled in the skis of his companion, who had caught up with him and had turned to the left to avoid the hikers on his side of the run. Plaintiff slipped down the rest of the run on his stomach and was unconscious until he was lying at the bottom. He was irate with his companion, who he believed was the cause of the accident.
Plaintiff’s Evidence
Our ability to relate the evidentiary support for plaintiff’s opposition to summary judgment is hampered. Plaintiff failed to designate in a timely fashion either his responses to the statements of undisputed facts, or his own separate statement of additional undisputed facts. Having failed to satisfy his duty as an appellant to provide an adequate record (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296), we will simply accept the characterization of these documents as incorporated in defendant Bear Valley’s response to them in the trial court.
Other than reiterating evidence that defendants had already submitted to the court, plaintiff’s exhibits also included an expert declaration on whether defendants had created a dangerous condition or increased the inherent risks of skiing; Bear Valley’s response to certain interrogatories; and the certificate of corporate status of MAS. Based on these materials, plaintiff did not identify any material factual dispute with Bear Valley’s separate statement of material facts (raising contrary legal conclusions instead). To the extent we can derive the information from the factual statement in plaintiff’s brief in opposition to the motion for summary judgment filed by defendant MAS, he also did not appear to identify a dispute with respect to any material facts in the separate statement of MAS (merely once again urging contrary legal conclusions on the issue of whether MAS was officially connected with Bear Valley such that it could claim the benefit of the express release he had executed).
In his separate statement of additional undisputed facts (at least as reflected in defendant Bear Valley’s response), plaintiff asserted that he had never seen anyone other than skiers use a run at Bear Valley for recreational activities. While he knew of previous occasions on which runs were blocked in order to accommodate events other than skiing, this did not include Kyle’s Run. In addition to these subjective factual assertions, plaintiff made a number of legal conclusions. These included a description of the release as a contract of adhesion, and its provisions as ambiguous (in particular, the meaning of “activities” or the scope of conduct released); his identification of a continuing duty on Bear Valley’s part to identify hazards on which he relied; the assertion that the mixed use of the run increased the hazards inherent in skiing; and the assertion that defendant MAS was not a coparticipant for purposes of the doctrine of primary assumption of risk.
Ruling
After summarizing its findings of undisputed facts (that are essentially identical to our own after our de novo review of the exhibits), the trial court initially concluded that the doctrine of primary assumption of risk was a complete defense to the complaint because neither defendant had increased the inherent risks of skiing. It also found that the release was valid, and applied to any conduct of either defendant that might have increased the risks inherent in skiing because there was not any evidence of conduct beyond the limits of ordinary negligence that would be outside the legal scope of an express release.
Discussion
I
In an abbreviated argument (that does not have further elaboration because he did not file a reply brief), plaintiff Rommell appears to contend that his express release must be limited to those risks inherent in the activity of skiing that he would reasonably have anticipated, and “activities” is an ambiguous term that does not reasonably include mountaineers on a ski run. Neither premise is tenable.
If it unambiguously expresses the intent to exculpate a tortfeasor from future negligence, a release applies to all negligent conduct reasonably related to the purpose of the release, not just risks of which a plaintiff has knowledge as being inherent in the recreational activity. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357-1358; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372-1373 & fn. 4 [noting that release of liability for negligence presupposes conduct that increases risk of harm beyond that inherent in activity].) The release at issue in the present case unambiguously releases Bear Valley (and MAS as an entity officially connected with it) from any liability for negligence in connection with plaintiff’s participation in activities at the resort, and skiing is plainly and unambiguously included in that definition. The acts of the two defendants (Bear Valley’s failure to warn or block the use of the run by anyone other than MAS, and MAS proceeding with its use of the run on the assumption that Bear Valley had responded to its request to block off the run) are within the scope of that release. Whatever the merits to plaintiff’s dubious claim that the release is ambiguous as to whether mountaineering is an included activity, it is entirely beside the point. The actions of defendants do not need to be within the definition of an activity in order to be within the scope of the release--they need only be related to increasing the risk of an included activity of plaintiff.
Not presenting any argument on the issue, plaintiff is deemed to have abandoned his effort in the trial court to argue that MAS was not officially connected with Bear Valley.
Plaintiff’s extended invocation of Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490-1491, is misplaced. In that case, there was evidence that all parties to the release anticipated that the course of the bicycle race would be closed to automotive traffic, and therefore there was a question of fact whether a participant reasonably could expect to encounter a vehicle during the race. In the present case, by contrast, the evidence demonstrated that a downhill skier (and plaintiff in particular) ordinarily anticipates encountering slower and even stationary skiers (such as skiers who have fallen or paused along the way). Nothing indicates that plaintiff believed himself to be the exclusive user of Kyle’s Run when he headed down it. The happenstance that the stationary persons along the side of the trail reached that location by climbing up the run rather than pausing on their way down does not bring the accident outside the scope of the release or plaintiff’s reasonable expectations in signing the release.
We do not express any opinion on whether the holding of this case is correct. (See criticism in Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601, fn. 9.)
II
Plaintiff also makes a conclusory argument that the conduct of defendants exceeded ordinary negligence and therefore could not legally be within the scope of a release. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750, 780, fn. 58 (City of Santa Barbara) [carefully noting that this distinction between degrees of negligence is a valid limitation on a defense, not an invalid recognition of a separate cause of action].) We do not agree.
Defendant MAS proceeded to make use of the ski run only after notifying Bear Valley at least twice of the need to put a barrier at the top. Plaintiff has not produced any evidence from which to conclude that it was unreasonable for MAS to proceed on the assumption that Bear Valley had responded to its notice of the need for a barrier. It is questionable whether its conduct can even amount to ordinary negligence, let alone satisfy the criteria for gross negligence or reckless misconduct. (See City of Santa Barbara, supra, 41 Cal.4th at p. 754 & fn. 4 (the former requires a want of even scant care or an extreme departure from the ordinary standard of conduct; the latter requires an act with the conscious or reckless disregard of probable injury to another).) As for defendant Bear Valley, while its failure to respond to notice from MAS was arguably negligent, there is an absence of any evidence of a certainty of injury such that its conduct transcends ordinary negligence.
Disposition
The judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.