Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. SCV130179, John P. Wade, Judge.
Ropers, Majeski, Kohn & Bentley, Susan H. Handelman and Sean P. Flynn for Plaintiff and Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter and Kathleen M. Bragg for Defendant and Respondent.
OPINION
Gaut, J.
1. Introduction
Two snowboarders collided midair. The other person’s snowboard sliced plaintiff’s neck causing significant injuries. The trial court granted defendant’s motion for summary judgment based on the doctrine of express assumption of risk and denied plaintiff’s new trial motion. Plaintiff now appeals. We affirm the judgment.
2. Factual and Procedural Background
a. The Complaint
The complaint asserted two causes of action against defendant, one for negligence and one for premises liability. In support of both claims, plaintiff similarly alleges that defendant operated the Bear Mountain Ski Resort “by setting up a ski jump in such a manner that there were two different launching points whose flight paths crossed in midair, making a dangerous and defective condition, likely to cause persons using the ski jump to injure themselves.” While making the jump, plaintiff was hit by Brian Bantle, the other snowboarder.
The cause of action for negligence against the other snowboarder has been dismissed and is not a subject of this appeal.
b. Summary Judgment Motion
The following facts were not disputed by the parties. Plaintiff was a 23-year-old snowboarding enthusiast with several years of experience. In connection with obtaining her season pass, plaintiff executed a release in November 2004. Under the terms of this release, plaintiff attested to her understanding that “participation in winter activities generally and particularly THE SPORT OF SNOW SLIDING IN IT’S VARIOUS FORMS [sic] (including... the use of Freestyle Parks, Terrain Features, Half Pipes or participation in racing activities; any intentional or unintentional jumping at any location...) INVOLVE INHERENT RISKS OF PROPERTY DAMAGE, INJURY OR DEATH that no amount of care, caution, instruction, or expertise can eliminate. Such dangers include, but are not limited to, variations in terrain and surface conditions, falls, loss of control and collisions with other snow sliders or with natural and man-made objects. Such risks and dangers are recognized and accepted whether they are marked or unmarked. PARTICIPANT FREELY ASSUMES ANY AND ALL SUCH RISKS, INCLUDING THE RISK OF ANY NEGLIGENCE OF SUMMIT.”
Additionally, the release provided: “In consideration for being permitted to participate in winter activities at Summit, PARTICIPANT AGREES TO FOREVER DISCHARGE AND RELEASE FROM ANY LEGAL LIABILITY AND TO NOT SUE SUMMIT for any injuries or property damages caused by or resulting from any access to Summit’s premises or participation in any winter activities, INCLUDING BUT NOT LIMITED TO INCIDENTS ARISING OUT OF SUMMIT’S ALLEGED NEGLIGENCE.”
Many of the remaining “facts,” as characterized by the parties in their separate statements, frequently involved legal argument, objections, and conclusions. But, having reviewed the record independently, we conclude it is fair to say that the parties agreed that Bantle hit plaintiff midair when they simultaneously executed jumps from two separate but adjacent terrain feature/jumps, which terminated in a shared landing area. Although there was considerable disagreement about the precise details of how the accident occurred, we have adequately described the “material” facts.
We note, however, defendant’s citations to some photographs in the record purporting to make it “abundantly clear there is in fact just a single terrain feature, located in a wide-open ski trail, which had a primary, central jump (known as the ‘cheese-wedge’) and an alternative jump on its right side (generally referred to as the ‘sidecar.’)” Viewed from the perspective of an appellate court, peopled by non-snowboarders, the photographs are not so clear. But we accept both parties’ characterization of there being two jumps in close proximity with a shared landing area.
The trial court concluded that the doctrine of primary assumption of risk did not apply under these circumstances because there was a triable issue of fact about whether the design and construction of the jumps may have caused an increased risk, relying on Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354. But the court also ruled that the written release was valid and that plaintiff’s claims were barred by the doctrine of express assumption of the risk.
c. Motion for New Trial
After the court entered judgment in favor of defendant in August 2007, plaintiff made a motion for new trial based partly on the newly-decided case of City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747 (Janeway). The trial court denied the motion.
3. Standard 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.)
4. Express Assumption of Risk
Plaintiff contends her express release must be limited to those risks inherent in the activity of skiing she would reasonably have anticipated. She further asserts “inherent” is an ambiguous term that does not reasonably include a midair collision while snowboarding. Neither premise is tenable.
If a release unambiguously expresses the intent to exculpate a tortfeasor from future negligence, the 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.) The Allan case noted that release of liability for negligence presupposes conduct that increases risk of harm beyond that inherent in activity.
The present release unambiguously absolves defendant of any liability for negligence in connection with plaintiff’s participation in activities at the resort. Snowboarding, or the sport of snow sliding, is plainly and unambiguously included in that definition. The acts of defendant in designing and operating the terrain feature/jumps used by snowboarders is within the scope of the release which expressly states that it covers use of terrain features and jumping. None of the defects or ambiguities, as discussed in other cases, afflict the release in this case. (Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1287-1291; Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484-1491.) In Zipusch and Cohen, the subject releases did not refer to defendants’ own negligence.
Whatever the merits of plaintiff’s dubious claim that the release is ambiguous as to whether a midair collision while snowboarding is not an included activity, it is also beside the point. The defendant’s actions 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.
In the present case, the evidence demonstrated that both snowboarders, plaintiff and Blandt, anticipated encountering another snowboarder but neither one saw the other when they began their jumps. The unfortunate circumstances of that and the timing of their jumps does not place the accident outside the scope of the release or plaintiff’s reasonable expectations in signing the release.
Plaintiff also argues that the conduct of defendant exceeded ordinary negligence and therefore could not legally be within the scope of the release. (Janeway, supra, 41 Cal.4th at pp. 750, 780, fn. 58.) We do not agree. Janeway involved a more specialized factual situation in which a disabled child drowned while swimming at a city-sponsored summer camp. As stated in Janeway, gross negligence means “‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’” (Id. at p. 754.) Reckless misconduct “describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result.” (Ibid. at fn. 4.)
Here the release applied to any conduct of defendant that may have increased the risks inherent in skiing. But there was not any evidence of conduct beyond the limits of ordinary negligence that would be outside the legal scope of an express release. The record does not demonstrate material disputed facts about whether defendant acted with gross negligence. Plaintiff has not produced any evidence from which to conclude that it was unreasonable for defendant to design and operate the jumps as it did. While defendant’s conduct was arguably negligent, we decide its conduct cannot satisfy the criteria for gross negligence or reckless misconduct.
In our view, the design of two jumps did not display “a want of even scant care or an extreme departure from the ordinary standard of conduct.” Plaintiff argues, with little support, that because the two jumps were near one another and used the same area for landing, the design caused the two snowboarders to jump simultaneously and collide midair. But, obviously, had one waited for the other to go first, or had their jumps formed different trajectories, allowing them to land in slightly different places, the collision would not have occurred. This case is not like Branco v. Kearney Moto Park, Inc. (1995) 37 Cal.App.4th 184, 192-193, in which there was a triable issue about a design error on a BMX racing course when the jump was used properly.
Additionally, there is no evidence defendant intentionally performed an act so unreasonable and dangerous that it knew or should have known it was highly probable that harm would result. The design was not dangerous if the jumps were made separately. It was hardly “highly probable” that such an accident might occur when it had never occurred before.
Furthermore, the Janeway decision does not offer a reason to vitiate the release for public policy reasons. Generally, “[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” (Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at pp. 1356-1357, citing Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739 and Allan v. Snow Summit, Inc., supra, 51 Cal.App.4th at p. 1373; Janeway, supra, 41 Cal.4th at pp. 759-760.)
The court in Janeway emphasized the public policy considerations in involving the abrogation of liability for future gross negligence: “[Like]... the vast majority of other jurisdictions, we conclude that public policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care. [Fn. omitted.] Applying that general rule here, we hold that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable.” (Janeway, supra, 41 Cal.4th at pp. 776-777.) Plaintiff has not identified any public policy reasons, like those existing in Janeway, to justify voiding the release granted by a recreational snowboarder to a ski resort. (Id. at p. 777, fn. 53.)
5. Disposition
For the same reasons as the trial court, we affirm the summary judgment in favor of defendant. We recognize that both parties discuss the alternative theory of primary assumption of risk but we do not need to reach that issue, which would not have been appealable as a basis for denying the motion.
Defendant, the prevailing party, is entitled to recover its costs on appeal.
We concur: Ramirez, P. J., Hollenhorst, J.