Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV 457846
Jones, P.J.
Appellant Sheryl Fernandez was injured while skiing at Heavenly Valley Ski Resort (Heavenly). She sued Bill Beaton, the snowboarder who injured her. The trial court excluded portions of her expert’s declaration and granted Beaton’s motion for summary judgment, concluding the primary assumption of risk doctrine barred Fernandez’s claims.
On appeal, Fernandez contends the court erred by excluding portions of her expert’s declaration. She also argues the court erroneously granted summary judgment because the assumption of the risk doctrine does not apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 18, 2006, Beaton collided with Fernandez in Heavenly’s “Snow Beach” area and injured her knee. In September 2006, Fernandez filed a complaint against Beaton alleging a negligence cause of action. Fernandez alleged she was “standing at the foot of a ski lift area commonly known as ‘[S]now [B]each’” when Beaton so “negligently, recklessly and carelessly controlled and/or operated [his] snowboard” that he collided with her and injured her.
A. Beaton’s Motion for Summary Judgment
Beaton moved for summary judgment, contending the assumption of risk doctrine barred Fernandez’s complaint. Relying on the rule set forth in Knight v. Jewett (1992) 3 Cal.4th 296, 320 (Knight), Beaton argued co-participants in sporting activities breach a legal duty of care to other participants only when they engage in conduct “that is so reckless as to be totally outside the range of ordinary activity involved in that sport.” Beaton claimed Fernandez assumed the risk of harm from a collision because collisions are “inherent in the active, fast-paced sport of skiing;” he also argued the evidence demonstrated he was not engaged “in the type of reckless behavior necessary for liability in the sporting activity context.”
B. Fernandez’s Opposition and Beaton’s Reply
In opposition to the motion, Fernandez argued the assumption of risk doctrine did not apply because Beaton acted recklessly by “violat[ing] the rules of skier responsibility when he raced into a congested traffic area at a rate of speed too high to stop or avoid collision[.]” According to Fernandez, Beaton was “riding too fast to avoid (or stop for) [her] at the time of the collision.”
Fernandez conceded it had been her experience that skiers and snowboarders occasionally run into each other on ski trails. She contended, however, that Snow Beach was an area where “people gather,” not a skiing area. She also characterized it as “a rest area or transition area which is flat, and where no downhill skiing or snowboarding can be performed[.]” And she claimed Beaton knew Snow Beach was a “slow skiing area” and was aware the area was congested but “tried to maintain his momentum from the foot of the run he exited across the Snow Beach area[.]”
To support these arguments, Fernandez relied heavily on the declaration of her expert, Malcolm Tibbetts. In his declaration, Tibbetts, a former head of ski patrol and mountain management at Heavenly, averred Snow Beach “is a flat meadow” and that “[o]ne cannot ski or snow board in the Snow Beach area because it is too flat.... It is not a true ski run and no regular skiing or snow boarding takes place here because it is flat.” Tibbetts explained the area is usually filled with people “standing around, having a meal, or getting a drink, meeting other people, or walking to one of the uphill ski lifts.” Tibbetts noted that signs posted around Snow Beach inform skiers they are entering a “slow skiing area.” He reiterated that no one goes to Snow Beach to ski or snowboard because “it is a gathering place, an eating place, a resting place, and a place to transfer lifts.” Tibbetts opined that holding a skier or snowboarder accountable for a collision in the Snow Beach area “would have no adverse impact on the sport of downhill skiing” and that Beaton’s conduct was reckless in part because he “violated his duty to snow board in control so as to be able to stop as he went into a congested area.” Tibbitts described Beaton’s conduct as “beyond unreasonable” and opined that he violated the “skier[’s] responsibility code” when he hit Fernandez.
Fernandez also offered portions of Beaton’s deposition in support of her opposition. In his deposition, Beaton described himself as an intermediate snowboarder. Before heading into the Snow Beach area, Beaton stopped to see if it was safe for him to enter the area. He noticed the area was “pretty busy” and there was “[p]retty heavy” traffic in the area. As he snowboarded down the “slightly sloped” hill into Snow Beach, Fernandez turned in front of him. Beaton tried to avoid Fernandez, but when he was about three to five feet from her, he realized he was going to hit her. He “went down on purpose to try to avoid her... to avoid the impact.” Beaton explained he hit Fernandez with a “medium” impact but stated he was not going very fast when he hit her. Beaton testified that he saw the signs near Snow Beach indicating it was a slow skiing area. He also stated he was familiar with the skier’s responsibility code which provides that “[s]kiers should ski under control.”
Fernandez also submitted excerpts from her own deposition wherein she described her injuries and the incident. Fernandez stated she took a ski run toward Snow Beach; when she reached the area, she “decelerated there, and basically just did a little shuffle” toward another chair lift. As she was “shuffling over” to the chair lift, she “got hit” by Beaton. She conceded she did not see Beaton hit her and did not know exactly how fast or slow he was going when he hit her. In her opinion, however, Beaton was going “very fast” because she flew a few feet into the air when he hit her. Fernandez also described Snow Beach: she testified it contained a lot of people who were standing, waiting, and shuffling, that it “it’s pretty flat for some distance,” and that it has signs warning skiers to slow down because “they’re coming into a pedestrian area, because that’s what [Snow Beach] is considered.”
In support of her opposition, Fernandez also submitted trail maps, pictures of Snow Beach, and the back side of a Heavenly lift ticket, which states (among other things) that ticket holders agree to “ASSUME ALL RISKS associated with participation in activities at the ski area through this ticket....”
In his reply, Beaton asked the court to exclude Tibbetts’s declaration in its entirety. Beaton contended Tibbetts was improperly opining on the duty owed by Beaton, “which is [the] ultimate legal issue” for the court.
C. The Court’s Order
Following a hearing, the court granted summary judgment for Beaton. The court concluded “as a matter of law that [Beaton] did not owe [Fernandez] a general duty of due care and that the doctrine of primary assumption of risk applies.” The court determined Beaton met his burden to demonstrate he was entitled to judgment as a matter of law and that Fernandez failed to establish triable issues of material fact.
It explained: “the court finds that [Fernandez’s] argument that [Beaton] may have violated the skier responsibility code is unpersuasive.... In fact, [Fernandez] has offered evidence that only tends to show that [Beaton] was negligent in snowboarding to the lift area. The fact that others in the [S]now [B]each area may have been eating or socializing is not material. [Fernandez] admits that she was on her skis and making her way to the ski lift when she was hit by [Beaton]. At most she has submitted evidence that [Beaton] may have been going too fast. But that is mere negligence and not sufficient to create a triable issue of material fact.... [Fernandez] has offered no evidence to suggest that [Beaton] intentionally injured her or engaged in conduct that was so reckless as to be totally outside the range of ordinary activity involved in the sport.”
The court also stated it was modifying its tentative ruling which had sustained all of Beaton’s objections to Tibbetts’s declaration. The modified ruling “allow[ed] opinion testimony of [ ] Tibbitts regarding the conditions of the Snow Beach area. The portion of the Declaration of [ ] Tibbetts which purports to offer opinion testimony regarding ultimate issues of law was excluded.” The court explained it excluded Tibbetts’s testimony regarding “his opinions about what [Heavenly’s] ski management intended but did not communicate to skiers... [and] opinion testimony about the conduct of [ ] Beaton.”
Fernandez appealed from the order granting summary judgment. “[A]n order granting summary judgment is not an appealable order.” (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) In its order granting summary judgment, the court determined Beaton was “entitled to judgment as a matter of law,” but no judgment appears in the record on appeal. “In the interests of justice and to avoid delay, we construe the order granting summary judgment as incorporating an appealable judgment, and the notice of appeal as appealing from such judgment.” (Ibid.; see also Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6.)
DISCUSSION
A. The Exclusion of Portions of Tibbetts’s Declaration Was Not an Abuse of Discretion
As stated above, the court excluded the majority of Tibbetts’s declaration because it “offer[ed] opinion testimony regarding ultimate issues of law[.]” Fernandez complains the court improperly “struck” Tibbetts’s testimony because the issue of recklessness was an issue of fact, not law.
“Generally, a party opposing a motion for summary judgment may use declarations by an expert to raise a triable issue of fact on an element of the case provided the requirements for admissibility are established as if the expert were testifying at trial. [Citations.] An expert’s opinion is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....’ [Citation.] Although the expert’s testimony may embrace an ultimate factual issue [citation], it may not contain legal conclusions. [Citation.]” (Towns v. Davidson (2007) 147 Cal.App.4th 461, 472 (Towns).)
“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, supra, 147 Cal.App.4th at pp. 472-473, fn. omitted, original italics.)
Towns is instructive. There, the plaintiff sued the defendant after he collided with her on a ski run. (Towns, supra, 147 Cal.App.4th at p. 465.) In opposition to the defendant’s motion for summary judgment, the plaintiff submitted the declaration of her expert, Dick Penniman, a member of the National Ski Patrol and a ski instructor. (Id. at pp. 466, 471-472.) In his declaration, Penniman opined that the defendant’s behavior was reckless and “outside the range of the ordinary activity involved in the sport of skiing.” (Id. at p. 472.)
The trial court excluded the declaration in its entirety and granted the motion for summary judgment. The appellate court affirmed. (Towns, supra, 147 Cal.App.4th at p. 472.) The Towns court explained, “The nature and risks of downhill skiing are commonly understood, the demarcation of any duty owed is judicially defined, and, most significantly, the facts surrounding the particular incident here are not in dispute. Thus, the trial court was deciding the issue of recklessness as a matter of law. There was little an expert’s opinion could have added that would have assisted the trier of fact on any of the issues before it.” (Id. at p. 473.)
The court also noted Penniman’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 Penniman’s declaration.” (Towns, supra, 147 Cal.App.4th at p. 473.)
The same is true here. The trial court excluded portions of Tibbetts’s declaration where Tibbetts — like Penniman — described Beaton’s conduct as “beyond unreasonable” and concluded Beaton was reckless. These portions of Tibbetts’s declaration added nothing beyond declaring that, in Tibbett’s opinion, Beaton’s conduct constituted recklessness. In short, he “‘was advocating, not testifying.’” He reached what in this case was an ultimate conclusion of law, a point on which expert testimony is not allowed. (Towns, supra, 147 Cal.App.4th at p. 473, citations omitted.) In an apparent effort to distinguish Towns, Fernandez devotes a substantial amount of argument to reciting Tibbetts’s professional experience. Tibbetts’s excellent credentials do nothing to persuade us that Towns is distinguishable or that the court abused its discretion by excluding the majority of Tibbetts’s declaration.
B. The Court Properly Granted Summary Judgment
“The standard of review for summary judgment is well established. The motion ‘shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ([Code Civ. Proc.], § 437c, subd. (c).) A moving defendant has met its burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196 [(Lackner]).) We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Lackner [ ], supra, at p. 1196.)” (Gundogdu v. King Mai, Inc. (2009) 171 Cal.App.4th 310, 313.)
In Knight, supra, 3 Cal.4th 296, the California Supreme Court outlined the primary assumption of the risk doctrine. (See Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012, 1021.) Because the doctrine is well established, we need not recite its development, nor the policy behind it. (See Shin v. Ahn (2007) 42 Cal.4th 482, 488 (Shin) [describing development of the doctrine].) We simply note it “bars any recovery by a plaintiff [in a negligence action] ‘when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity” and to each other, the “‘defendant owed the plaintiff no duty of care.’” (Hamilton, supra, at p. 1021, quoting Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538.) Numerous courts have applied the primary assumption of risk doctrine to snow skiing and snowboarding and have held that collisions with other skiers are an inherent risk of these sports. (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12; Towns, supra, 147 Cal.App.4th at p. 470; Cheong v. Antablin (1997) 16 Cal.4th 1063 (Cheong); O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188.)
The parties agree the assumption of risk doctrine applies to skiing. Fernandez, however, contends the assumption of the risk doctrine does not bar her complaint because Beaton was reckless. To establish Beaton’s conduct was reckless, Fernandez was required to show his conduct was “‘so reckless as to be totally outside the range of the ordinary activity involved in the sport.’” (Towns, supra, 147 Cal.App.4th at p. 470, quoting Knight, supra, 3 Cal.4th at p. 320.) “‘“[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” [Citations.]’” (Towns, supra, 147 Cal.App.4th at p. 470, quoting Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1261.)
“‘“Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur. [Citations.] Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action... with knowledge of the serious danger to others involved in it.” [Citation.]’” (Towns, supra, 147 Cal.App.4th at p. 470, quoting Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)
Fernandez relies heavily on Lackner in an attempt to establish Beaton was reckless. In that case, the plaintiff skier was “standing in a largely deserted area at the base of an advance run used by skiers and snowboarders to stop and rest.” (Lackner, supra, 135 Cal.App.4th at p. 1193.) The defendant snowboarder crashed into the plaintiff at such a high rate of speed that he “catapult[ed] the two of them 50 feet into the air.” (Id. at p. 1195.) The impact shattered the plaintiff’s ankle, broke her leg, and fractured her pelvis. (Ibid.)
The trial court granted summary judgment, but the Lackner court reversed, concluding a triable issue of fact remained regarding whether the defendant’s conduct was reckless. (Lackner, supra, 135 Cal.App.4th at p. 1195.) The Lackner court explained that the plaintiff’s evidence showed “the collision occurred because [the defendant] was racing his teammates and was preoccupied with his position. As a result, he rode his snowboard into a rest area at a high rate of speed without looking where he was heading... visibility was excellent and the area was wide open. Had he been paying attention to his surroundings and the few people standing in the area, he had the skill, and would have had the time and the space to avoid hitting [the plaintiff].” (Id. at p. 1201.) The court noted that “[w]hile racing down an advanced run is a part of the thrill of snowboarding, intentionally speeding into a flat area at the base of an advanced run where people have stopped to rest, when one is unfamiliar with the area, without looking where one is going is not an integral and unavoidable part of the sport.” (Ibid.)
Lackner is distinguishable. Here, Beaton did not intentionally speed into a flat, wide-open area at the base of a ski run without looking where he was going, nor was he speeding when unfamiliar with the area. The undisputed evidence demonstrated Beaton was familiar with the area; he was snowboarding with enough momentum to get to the place where he planned to stop; and he was paying attention and was not racing anyone. Beaton did not “overtake any other skiers or riders” as he snowboarded through Snow Beach. For these reasons, Lackner is of no assistance to Fernandez and the court here properly concluded there was no evidence on which a jury could determine Beaton was snowboarding recklessly — as opposed to merely negligently — at the time of the collision.
We are not persuaded by Fernandez’s contention that Beaton’s violation of the skier responsibility code establishes he acted “outside the course of ordinary, careless conduct and increas[ed] the risk of the sport beyond that which is inherent in the sport.” In Cheong, the California Supreme Court rejected this very argument and held that a Placer County ordinance which codified the skier responsibility code did not “modify common law assumption of risk principles.” (Cheong, supra, 16 Cal.4th at p. 1069.) Moreover, numerous courts have concluded that even intentional conduct which violates the rules of the sport does not limit the application of the assumption of risk doctrine. (See, e.g., Shin, supra, 42 Cal.4th at p. 497; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 165.)
Fernandez contends Beaton was outside the range of the ordinary activity involved in the sport of skiing once he entered Snow Beach. Following Fernandez’s logic, “[o]nce a skier/rider passes the slow skiing area sign into the Snow Beach area he is no longer engaged in the usual course and scope of the Alpine Skiing phase of the sport.” We disagree. The undisputed evidence established that Snow Beach was not a “no skiing” zone; it was a “slow skiing zone.” We also reject Fernandez’s suggestion that she was not engaged in the sport of skiing when Beaton hit her because she was in an area designed for gathering and resting. “‘[A]n activity falls within the meaning of “sport” if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.’” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 880 (Truong), quoting Record v. Reason (1999) 73 Cal.App.4th 472, 482.) Here, Fernandez was engaged in a “sport” when Beaton hit her. The uncontroverted evidence established that Fernandez had her skis on and was moving toward a ski lift when Beaton collided with her. Moreover, she was not in a rest area. She was in a “slow skiing” area. (See Shin, supra, 42 Cal.4th at p. 487 [assumption of risk doctrine applied where plaintiff was standing near tee box checking his cell phone messages]; Truong, supra, 156 Cal.App.4th at p. 896 [assumption of risk doctrine applied where decedent was a passenger on a wave runner used for a “casual ride around the lake;” noting that the application of the doctrine does not depend “on a characterization of the use of equipment or action occurring at the very moment of injury...”].)
For these reasons, we conclude the court did not err when it granted summary judgment against Fernandez.
DISPOSITION
The judgment is affirmed. Beaton is to recover his costs on appeal.
We concur: Simons, J., Needham, J.