Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV151139
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
This action arises from a collision at the Squaw Valley Resort between a skier, appellant Melinda Sesto, and her snowboarder friend, respondent Dallas Kachan. Moments before the collision occurred, Sesto was skiing ahead of Kachan on the same slope. On impulse, Kachan decided to catch up with Sesto in order to give her a congratulatory pat on her buttocks. The two collided after Kachan accelerated towards her on his snowboard with his arm outstretched. As a result of the collision, Sesto fell and sustained serious injuries.
Sesto filed a personal injury action against Kachan, who subsequently brought a summary judgment motion on the ground that Sesto’s claim was barred by the affirmative defense of assumption of risk. The trial court granted the motion, finding as a matter of law that Sesto had assumed the risk of collisions with others while she was skiing. The trial court also denied Sesto’s motion for reconsideration.
On appeal, Sesto contends that the trial court erred in determining that assumption of risk was a complete defense because Kachan failed to make the requisite showing under Knight v. Jewett (1992) 3 Cal.4th 296, 320 (Knight) that his conduct was within the range of ordinary activity involved in snowboarding and did not increase the inherent risk of a collision on the ski slope. For reasons that we will explain, we agree and therefore we will reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On the morning of April 12, 2003, Sesto and her friends Kachan and Sophie Ward went to the Squaw Valley Resort to ski and snowboard. They were on the mountain at about 9:00 a.m. Sesto, a self-described intermediate skier, skied by herself most of the morning because she was slower than Kachan and Ward. At some point, Kachan observed Sesto’s skiing and was pleasantly surprised to discover that Sesto was a “good skier” who was more advanced than he expected. Sesto was not Kachan’s girlfriend and the two did not engage in any mutual “horseplay” on the ski slopes.
A collision between Sesto and Kachan occurred during their last run of the morning. Sesto had not seen Kachan snowboarding recklessly before that time. Immediately before the collision, Sesto, Kachan, and Ward were traveling down Mountain Run, a gently sloping ski run that goes to the bottom of the hill near the parking lot and main lodge. They were planning to have lunch together before resuming their day on the mountain.
About 10 seconds before the collision occurred, Kachan saw Sesto skiing straight down Mountain Run approximately 20 yards ahead of him. As stated in his deposition testimony, Kachan then made a split-second, impulsive decision to give Sesto a congratulatory pat on her “bottom”: “[W]e were at our last run for the day, and we were all pretty happy with how we’d done on the slopes that day, to that point. I wanted to offer [Sesto] yet another congratulatory sign of how well she had done. I could clearly tell that there was no one else around. The slope was a gentle one. The risk appeared minimal. She was skiing in a straight line. She had skied far stronger than I expected throughout the day. It was a split second, impulsive decision made just in the seconds before the incident.”
To reach Sesto in order to give her a congratulatory pat on her bottom, Kachan aimed to snowboard within “arm’s reach” of her left side. According to Sesto, Kachan yelled “Sesto” as he approached her. She looked over her left shoulder and saw Kachan snowboarding at a fast speed while he was crouched down with his arm out to the side. Ward was skiing nearby. She saw Kachan heading towards Sesto in a low stance and thought there was going to be a collision. Kachan then collided with Sesto. Neither one knows exactly how the collision occurred or whether Kachan actually gave Sesto a pat on the bottom. Kachan recalled that the collision occurred in a split second: “One moment my arm was outstretched and the next we were both rolling down the hill.” While Sesto only recalls tumbling and lying face down on the ground, she does not believe that Kachan intended to cause her to fall.
As a result of the collision, Sesto sustained injuries to her back, wrist and ankle and underwent three surgeries.
B. Procedural Background
1. The Pleadings
Sesto filed a personal injury complaint against Kachan on March 16, 2005. According to the factual allegations in the complaint, Sesto was skiing down an icy slope when she heard Kachan yell out her last name and saw him snowboarding in her direction at a high speed with his hand extended “to smack her from behind.” When Kachan either “smacked her behind” or attempted and failed to “smack her behind,” the parties collided. Sesto was knocked to the ground and “tumbled end over end on hard packed snow and ice.”
Based on these allegations, Sesto stated a first cause of action for “negligence/reckless conduct” in which she asserted that defendant Kachan had breached his duty of care not to engage in conduct while snowboarding that was so reckless as to be outside the range of ordinary activity involved in skiing or snowboarding. Sesto also stated a second cause of action for battery, asserting that she had not consented to harmful or offensive contact with her person.
Kachan filed an answer in which he did not assert the affirmative defense of assumption of risk. In summary judgment procedure, the pleadings establish the issues to be considered in ruling on the motion for summary judgment. (Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122.) However, because it is apparent from the record that Sesto was fully informed that Kachan was asserting the defense of assumption of risk and his subsequent summary judgment motion was decided on the merits, we find the pleading defect to be harmless. (See Harper v. Kaiser Cement Corp. (1983) 144 Cal.App.3d 616, 620-621.)
2. The Motion for Summary Judgment
Kachan brought a motion for summary judgment on the ground that Sesto’s personal injury action was barred by the affirmative defense of assumption of risk. Kachan relied on the rule established in Knight, supra, 3 Cal.4th at page 320, that a participant in a sport breaches a duty of care to a coparticipant only by intentionally injuring the coparticipant or engaging in “conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” Based on this rule, Kachan argued that Sesto had assumed the risk of harm from a collision with a snowboarder because inadvertent collisions are an inherent risk in the sport of recreational skiing and there was no evidence that Kachan had intended to collide with Sesto or acted recklessly.
Additionally, Kachan contended that the nature of the sport of “skiing” would be fundamentally altered if a “skier” could be found liable for inadvertently colliding with another skier while attempting to ski close to that skier. He explained that “[p]art of the enjoyment of skiing with friends and family is the camaraderie of talking to each other as one skies down the hill . . . .” Finally, Kachan argued that local ordinances, such as a “ ‘Skier Responsibility Code,’ ” would not impose a higher duty on a “skier” because the California Supreme Court in Cheong v. Antablin (1997) 16 Cal.4th 1063, ruled that a skier responsibility code does not modify the common law defense of assumption of risk or create a statutory cause of action for violations of the code.
Although Kachan refers to a skier colliding with another skier, the record reflects that at the time of the accident that is the subject of this action he was snowboarding and Sesto was skiing.
3. Opposition to Motion for Summary Judgment
Sesto argued that the motion for summary judgment should be denied because Kachan had failed to meet his burden on summary judgment to make a prima facie showing that she, as a skier, assumed the risk of a collision caused by another snowboarder’s attempt to touch her buttocks. To support this argument, Sesto submitted a declaration in which she stated on the basis of “knowledge and belief” that neither “intentionally touching other skiers while they are in motion” nor “buttocks touching” was an “ordinary activity involved in the sports of skiing and snowboarding.”
Alternatively, Sesto asserted that even if the giving of a congratulatory pat on the buttocks of a fellow skier was considered an ordinary activity in the sports of skiing and snowboarding, a triable question of fact existed as to whether Kachan intended to offer Sesto a “congratulatory pat” or to “slap her buttocks in a non-congratulatory manner before crashing into her.”
4. The Trial Court’s Order
After hearing argument on the summary judgment motion, the trial court ruled from the bench that the motion would be granted for the following reasons: “So the fact that [Kachan] was speeding and may have been traveling faster than was safe for conditions does not make his conduct reckless. [¶] His intention to make physical contact would also not necessarily make [Kachan’s] conduct reckless, even though this is not a contact sport. [¶] So we have combined factors of speeding and intent to make physical contact. It seems to me that [Kachan’s] conduct was negligent but that it did not rise to the level of recklessness necessary to find that he breached a duty to [Sesto]. So I would grant the motion.” However, in so ruling the trial court noted that the motion is “a close one and open for argument.”
In its written order filed February 10, 2006, the trial court stated its ruling as follows: “The Court find that KACHAN’S conduct, while it may have been negligent, was not reckless so as to fall outside the scope of the risk one assumes when voluntarily engaging in the sport of skiing and/or snowboarding. [Sesto’s] assumption of the risk of collisions with others while she was skiing bars all causes of action herein.”
5. The Motion for Reconsideration
On February 14, 2006, Sesto filed a motion for reconsideration of the order granting the summary judgment motion under Code of Civil Procedure section 1008, subdivision (a). The basis for the reconsideration motion was new law, consisting of the decision in Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367 (Graham). Sesto pointed to the appellate court’s ruling in Graham that a skier did not assume the risk of a collision with a snowboarder who was engaged in a snowball fight with another snowboarder at the time of the collision. She argued that she similarly did not assume the risk of a collision caused by a snowboarder’s horseplay in which she was not a participant.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Additionally, Sesto asserted that Graham supported her contention that the trial court erred in deciding the jury question of whether Kachan’s conduct was so reckless as to be outside the range of ordinary activity involved in the sport of snowboarding. She supported her motion with excerpts of Kachan’s deposition testimony, in which Kachan stated that a cautious snowboarder would not go too close to other skiers or snowboarders and admitted that he allowed as “wide [a] berth” as possible, especially if the other skiers or snowboarders appeared to be exhibiting “unpredictable tendencies, random changes in direction, [or] skiing outside of their control.”
The trial court denied the motion for reconsideration in its order and statement of decision filed April 14, 2006. The trial court explained its reasoning in the statement of decision, including the court’s determination that the decision in Graham, supra, 135 Cal.App.4th 1367 was factually distinguishable. The trial court also stated that Sesto had offered “no testimony beyond her own declaration to support her contention that no intentional touching is allowed among persons engaged in the sports of skiing and snowboarding” or that “any snowboarder who approaches a skier within arms’ length with the intent of touching her is necessarily engaging in conduct entirely outside the range of ordinary activity of the sport(s) . . . .” The court found to the contrary that an inherent risk of skiing is that “another participant may choose to pass too close for one’s comfort.”
Additionally, the trial court determined that the imposition of liability for congratulatory touching or passing too close in an attempt to touch would “dramatically alter the fun, sociability, and camaraderie among coparticipant athletes that now characterizes recreational snow sports.” The court accordingly reiterated its ruling that Sesto’s action was barred by the affirmative defense of assumption of risk.
On appeal, Sesto seeks review of both the summary judgment and the order denying her motion for reconsideration.
III. DISCUSSION
A. The Standard of Review
The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th 826, 860 (Aguilar.) The trial court's stated reasons for granting summary judgment are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In performing our independent review, we are guided by the California Supreme Court’s decisions addressing summary judgment procedure. A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, 25 Cal.4th at p. 850.) Appellate courts have noted that “[t]he burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff’s cause of action cannot be established.” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) This is because “ ‘the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense.’ [Citations.]” (Ibid.; Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 467-468.)
If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (§ 437c, subd. (p)(2); Aguilar, 25 Cal.4th at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).)
In determining whether the parties have met their respective burdens, the court must “consider all of the evidence” and “all of the inferences reasonably drawn therefrom,” and “must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, 25 Cal.4th. at pp. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, 25 Cal.4th at p. 850, fn. omitted.)
In the present case we will therefore independently determine whether Kachan met his initial burden of establishing a complete defense to Sesto’s personal injury claim. Our analysis begins with a discussion of the doctrine of assumption of risk, which Kachan has asserted as a complete defense.
B. Assumption of Risk
A person generally owes a duty of due care not to cause an unreasonable risk of harm to others. (Civ. Code, § 1714; Kahn, supra, 31 Cal.4th at p. 1003.) 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, supra, 31 Cal.4th at p. 1003-1004.) Secondary assumption of risk applies where the “defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” (Knight, supra, 3 Cal.4th at p. 308.) In such cases, the defendant’s liability is determined by applying the doctrine of comparative fault. (Kahn, supra, 31 Cal.4th at p. 1003.)
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, supra, 16 Cal.4th at p. 1068.) Therefore, “[i]mposing a duty to mitigate these inherent dangers could alter the nature of the activity or inhibit vigorous participation. In a game of touch football, for example, there is an inherent risk that players will collide; to impose a general duty on coparticipants to avoid the risk of harm arising from a collision would work a basic alteration—or cause abandonment—of the sport.” (Kahn, supra, 31 Cal.4th at p. 1003.)
Accordingly, as a matter of public policy the California Supreme Court has established the following rules regarding the application of 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.’ ” (Cheong v. Antablin, supra, 16 Cal.4th at p. 1068, quoting Knight, supra, 3 Cal.4th at p. 320.) 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, supra, 31 Cal.4th at p. 113.)
The California Supreme Court is presently considering the application of the assumption of risk doctrine in a case where the defendant golfer allegedly hit a golf ball from a tee without ascertaining the location of another golfer in his party, whom the golf ball struck and injured. (Shin v. Anh. (2006) 141 Cal.App.4th 726, review granted Oct. 25, 2006, S146114.) Oral argument was held June 6, 2007.
The test for determining whether a risk is inherent in a sport arises from the primary object of the doctrine of primary assumption “in the sports setting,” which is to avoid imposing a duty on a participant where that duty would alter the nature of the sport or chill vigorous participation. (Kahn, supra, 31 Cal.4th at p. 1011.) Therefore, it has been held that “conduct 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.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1394; see also Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1222; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1261.)
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., supra, 38 Cal.4th at p. 166.) With regard to snow skiing, the appellate courts have established that the risks inherent in 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.)
A defendant who moves for summary judgment on the ground of assumption of the risk 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.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1395.) Thus, while a defendant skier or snowboarder does not have a duty to avoid an inadvertent collision with another skier, to obtain summary judgment the defendant must show that his or her conduct was within the range of ordinary activity involved in skiing or snowboarding and therefore the conduct did not increase the risk of a collision. (Id. at pp. 1395-1396 [summary judgment reversed where defendant skier failed to show that consumption of alcohol while skiing did not increase the risk of an inadvertent collision with another skier].)
In Graham, supra, 135 Cal.App.4th at pages 1369-1370, the defendant snowboarder was preparing to throw a snowball at his brother, a fellow snowboarder, when the defendant slammed into the plaintiff ski school instructor. The defendant moved for summary judgment on the ground that the plaintiff’s personal injury claim was barred under the doctrine of assumption of risk because a collision with another skier is an inherent risk of the sport. The trial court granted the summary judgment motion but the appellate court reversed the judgment, finding that there was a triable question of fact as to whether the defendant’s conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of snowboarding. (Id. at p. 1374.)
In Lackner v. North, supra, 135 Cal.App.4th at p. 1201, the appellate court similarly determined that there was a triable question of fact as to whether the defendant snowboarder’s conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of snowboarding. In that case, the defendant snowboarder crashed into the plaintiff skier while coming down the mountain at an extremely fast pace during a warm up run before a race. (Id. at p. 1195.) The court ruled that “[w]hile racing down an advanced run is 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.” (Id. at p. 1201.)
On the other hand, where an employee of a ski resort collided with another skier while making a left turn without looking to his left before the turn, the appellate court determined that summary judgment in favor of the ski resort employee was proper under the doctrine of assumption of risk. (Towns v. Davidson, supra, 147 Cal.App.4th at p. 465.) The court found that there was “no evidence that [the 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.” (Id. at p. 471.) Additionally, the court ruled that “were we to conclude [the defendant’s] conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of skiing, we would call into question vigorous skiing and fundamentally alter the nature of the sport.” (Ibid.)
Having reviewed the application of the affirmative defense of assumption of risk, we turn to our analysis of Kachan’s motion for summary judgment in the present case.
C. Analysis
We must determine whether the trial court properly granted Kachan’s motion for summary judgment because Kachan made the requisite showing that he owed no duty of care to Sesto, and therefore her personal injury action is barred under the doctrine of primary assumption of risk, because his conduct was not so reckless as to be totally outside the range of ordinary activity involved in snowboarding and did not increase the inherent risk of a collision with a skier.
Sesto contends that the trial court erred because Kachan did not meet his initial burden on summary judgment to make an evidentiary showing that “intentional or reckless bodily contact with moving skiers” is an ordinary activity of skiing or snowboarding. Alternatively, Sesto asserts that triable questions of fact exist as to the inherent risks involved in skiing and whether Kachan increased those risks. She emphasizes that she presented evidence, by way of her declaration, that “ ‘buttocks touching’ ” and “ ‘intentionally touching other skiers while they are in motion’ ” are not within the range of ordinary activity involved in skiing or snowboarding. Additionally, Sesto asserts that Kachan testified in his deposition that the rules of the sport required that he not ski or snowboard too close to others.
Kachan maintains that he carried his evidentiary burden because the evidence established the undisputed facts concerning the circumstances of his collision with Sesto, from which the trial court properly determined as a matter of law that his conduct was not reckless. According to Kachan, “the court properly evaluated the inherent risks of skiing and snowboarding based on common knowledge, the vast body of California law regarding these sports and the undisputed facts concerning the particular incident involved in this case. The court correctly ruled, as a matter of law, that there was no ‘intentional or reckless bodily contact’ and properly gave little or no value to Sesto’s own declaration about her personal beliefs and opinions.” We are not convinced by Kachan’s argument.
While we recognize that the question of the “ ‘existence and scope’ ” of a defendant’s duty is a question of law to be decided by the court (Kahn, supra, 31 Cal.4th at p. 1004), as we have discussed, a defendant moving for summary judgment on the ground of assumption of risk “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.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1395 (italics added); see also Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740 [summary judgment on primary assumption of risk grounds unavailable unless defendant disproves plaintiff’s theory that defendant’s conduct increased the inherent risk of a sport or establishes a lack of causation].)
Our review of the record on summary judgment indicates that the undisputed facts fail to demonstrate that as a matter of law Kachan’s conduct was not so reckless as to be totally outside the range of ordinary activity involved in snowboarding and therefore he did not increase the risk of a collision with a skier. As we have noted, the test for whether conduct is totally outside the range of ordinary activity involved in the sport is whether “the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1394.) We cannot say as a matter of law, on the evidence submitted in support of and opposition to Kachan’s summary judgment motion, that to prohibit a snowboarder from intentionally accelerating on the ski slope to a distance of arm’s length from a moving skier, with his arm outstretched in order to place a congratulatory pat on the skier’s buttocks, would deter vigorous participation in snowboarding or otherwise fundamentally alter the nature of the sport. There is nothing in the record to demonstrate that such conduct is within the range of ordinary activity involved in snowboarding. The argument of counsel that Kachan’s conduct was typical of the camaraderie ordinarily enjoyed by coparticipants in snowboarding and skiing is insufficient to meet Kachan’s burden because “[i]t is axiomatic that the unsworn statements of counsel are not evidence.” (In re Zeth S. (2003) 31 Cal.4th 396, 414; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.)
Moreover, as one appellate court has stated, “a skier has a duty not to increase the risks of the sport beyond those inherent, and summary judgment is improper where the circumstances suggest that the defendant engaged in activity that increased the risk.” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 828.) Here, the circumstances of the collision between Kachan and Sesto, as set forth in Kachan’s summary judgment motion, suggest that he engaged in activity while snowboarding that increased the inherent risk of a collision with a skier when he intentionally accelerated towards his friend Sesto with his arm outstretched in an attempt to pat her buttocks while she was skiing. Therefore, we conclude that Kachan did not meet his initial burden in moving for summary judgment on the ground of the affirmative defense of assumption of risk and his summary judgment motion should have been denied. For these reasons, we will reverse the judgment.
In concluding that the summary judgment motion should have been denied, we express no opinion as to the merits of Sesto’s personal injury claim. Having reached this conclusion, we need not address Sesto’s contention that the trial court also erred in denying her motion for reconsideration.
IV. DISPOSITION
The judgment is reversed. Appellant is awarded her costs on appeal.
WE CONCUR: Mcadams, J., Duffy, J.