Opinion
F034825
Filed September 28, 2001 Certified for Publication
Appeal from a judgment of the Superior Court of Fresno County, No. 627656-2, Donald S. Black, Judge.
Wagner Jones, and Nicholas Wagner, for Plaintiff and Appellant.
Nagel Nagel, and John T. Nagel, for Defendant and Respondent.
This case involves the tort liability of a snowboarder who collided with a skier while both were descending a snow-covered mountainside (hereafter "slope"). The parties present two issues on appeal. First, are snowboarders and skiers using the same slope "coparticipants" in a sporting activity such that the doctrine of primary assumption of risk applies to bar appellant's recovery? Second, if primary assumption of risk does apply, was respondent's conduct "so reckless as to be totally outside the range of the ordinary activity involved in the sport" and therefore make summary judgment improper? ( Knight v. Jewett (1992) 3 Cal.4th 296, 320 ( Knight).) We frame the assumption of risk issue slightly differently than presented by the parties, and conclude that under the doctrine of primary assumption of the risk a snowboarder owes no duty of care to a skier on the same slope and that, in this case, the evidence established that respondent's conduct was not reckless.
FACTS AND PROCEDURAL HISTORY
On March 6, 1998, appellant Robert Mastro and respondent Steve Petrick were at Sierra Summit Ski Resort to ski and snowboard, respectively. Both were descending a slope called "Boulder Alley" when Petrick, the snowboarder, collided into Mastro, the skier. Petrick had snowboarded down the slope at approximately 30-35 miles per hour and did not see Mastro until immediately before colliding with him. Mastro suffered a severe knee injury as a result of the collision.
On March 3, 1999, Mastro filed a complaint against Petrick alleging general negligence and recklessness. Mastro's complaint alleged, in pertinent part:
"That at all times herein mentioned, the defendants, and each of them, including defendant, STEVE PETRICK, negligently, carelessly, and recklessly operated and controlled their snowboard while snowboarding near and around the general vicinity of plaintiff, ROBERT MASTRO."
Petrick answered the complaint on June 16, 1999, asserted the defense of assumption of risk, and filed a motion for summary judgment on October 8, 1999. Petrick contended in his motion that under the doctrine of assumption of risk he owed no duty of care to Mastro so long as his conduct was not reckless. Petrick further contended that his conduct was not reckless and therefore was not outside the range of ordinary activity involved in the sport of snow skiing or snowboarding. Mastro timely opposed the motion, arguing that Mastro and Petrick were not coparticipants in the same sport and therefore the doctrine of primary assumption of risk should not apply to bar Mastro's claim (i.e., Petrick did owe Mastro a duty of care). Mastro further argued that even if they were coparticipants (and therefore no duty of care was owed), Petrick's conduct was reckless, thereby precluding summary judgment. After announcing its tentative decision to grant Petrick's motion for summary judgment, the trial court heard argument on the motion on November 10, 1999. The court filed its decision on December 2, 1999, granting the motion. Judgment was entered against Mastro on December 13, 1999, and Mastro timely appeals.
DISCUSSION
Standard of Review
A motion for summary judgment "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 court may grant summary judgment only when the evidence in support of the moving party establishes that there is no issue of fact to be tried." ( Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 547.) An appellate court reviewing a trial court's granting of summary judgment will make a de novo determination of whether there is a triable issue of fact and whether the moving party is entitled to judgment as a matter of law. ( Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511- 1515.) In conducting our independent review of a grant of summary judgment, we apply the same analysis as the trial court. ( AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) "First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. [¶] Secondly, we determine whether the moving party's showing has established facts which negate opponents claim and justify a judgment in movant's favor. [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." ( Id. at pp. 1064-1065; in accord, see Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401.) Subdivision (o)(2) of Code of Civil Procedure section 437c states in relevant part:
"(o) For purposes of motions for summary judgment and summary adjudication: [¶] [¶] (2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant cannot rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto."
This court has previously explained the meaning of subdivision (o)(2) as follows:
"[W]e conclude that a moving defendant now has two means by which to shift the burden of proof under subdivision (o)(2) of section 437c to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] Alternatively, the defendant may utilize the tried and true technique of negating (`disproving') an essential element of the plaintiff's cause of action. [Citation.]" ( Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598, fn. omitted.)
As the moving party Petrick bore the burden of either affirmatively negating an element of the cause of action or pointing to an absence of evidence. Petrick's motion raised both an issue of law (duty), and sought to affirmatively disprove that he acted recklessly. For the reasons set forth below, we agree with Petrick on both issues and affirm the grant of summary judgment.
Did Petrick owe Mastro a Duty of Care?
To sort through the tort law at issue in this case we begin by stating the basic rule that we all generally have the duty to use due care to avoid injuring others. (Civ. Code, § 1714, subd. (a).) Our Supreme Court attempted to clarify this general rule as applied in the sports context in Knight, concluding that the doctrine of assumption of risk properly bars a plaintiff's claim when it can be established that the defendant owed the plaintiff no duty of care. ( Knight, supra, 3 Cal.4th at pp. 313, 314-315.) "[T]he existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury." ( Id. at p. 313.) Thus, when the injury occurs in a sports setting the court must decide whether the nature of the sport and the relationship of the defendant and the plaintiff to the sport — as coparticipant, coach, premises owner or spectator — support the legal conclusion of duty. ( Id. at 309, 317.) And where a court concludes no duty exists, our Supreme Court has labeled this lack of duty as the doctrine of "primary assumption of risk." (See Knight, supra, 3 Cal.4th at 308 [defining primary assumption of risk as "those instances in which the assumption of risk doctrine embodies a legal conclusion that there is `no duty' on the part of the defendant to protect the plaintiff from a particular risk"].) In other words, because of the relationship of defendant and plaintiff to the sport the defendant is engaged in, the plaintiff assumes the risk of injury by a defendant who does not owe the plaintiff the general duty of due care.
Appellant makes an extended argument applying the eight part test from Rowland v. Christian (1968) 69 Cal.2d 108, superseded by statute as stated in Perez v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 462, 467 (generally we all owe a duty of care to act reasonably). We do not engage in this analysis because Knight is an exception to applicability of the Rowland analysis. ( Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 116 [explaining Knight is an exception to the general rule of Rowland v. Christian].)
In this case, the parties agree that coparticipants in a sporting activity only breach a legal duty of care to other participants where they intentionally injure or engage in "conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport." ( Knight, supra, 3 Cal.4th at p. 320.) Mastro argued below and on appeal that he and Petrick were not coparticipants in the same sport, and he therefore reasons, the Knight rule of non-liability for coparticipants in a sporting activity does not apply. He contends that snowboarding and skiing are sufficiently different activities that, even though they may take place on the same slope, they are not the same "sport" within the meaning of the assumption of risk doctrine. Petrick naturally disagrees, arguing that the trial court was correct in concluding that both parties were engaged in the "general sport of snow riding or skiing" and Petrick owed no duty of care to Mastro because Mastro "chose to snow ski at a resort that offers the whole mountain to snow skiers and snow boarders."
We do not agree with the parties that this case turns on whether or not Mastro and Petrick are labeled as "coparticipants" in the same sport. To resolve this issue in the manner presented by the parties would lead to one of two illogical and baseless results, and would ignore the analysis required by Knight. As the parties frame the issue, we would either have to factually conclude that the two activities (involving different equipment, goals, competitions and maneuvers) were the same "sport;" or, we would have to conclude they are different sports and therefore (so Mastro's argument necessarily concludes), a snowboarder owes a duty of care to skiers he might encounter on a slope where both skiers and snowboarders are allowed but owes no duty of care to other snowboarders he might encounter on a slope. We are not inclined to slide down either of these slippery slopes, and need not do so to resolve the essential issue here: did Petrick owe Mastro a duty of care?
We find that Petrick owed no duty of care to a non-snowboarder occupying an area properly utilized by snowboarders. Whether or not Mastro and Petrick were engaged in the same general activity or sport is not the relevant question under the Knight analysis. This is made clear by the Knight court's self-described "duty approach to the doctrine of assumption of risk." ( Knight, supra, 3 Cal.4th at p. 313.) Under the duty approach, a defendant's participation in a sport does not merely preclude liability as to other "coparticipants," but rather his duty to others is determined by "the nature of the sport or activity in question and on the parties' general relationship to the activity." ( Ibid., italics added; see also Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 541 ["We . . . keep in mind . . . the nature of the defendant's activities and the relationship of the plaintiffs and the defendant to that activity to decide whether, as a matter of public policy, the defendant should owe the plaintiffs a duty of care"].) In other words, there is nothing in Knight that leads to the conclusion assumption of risk will only apply to coparticipants. (See Allen v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1368-1372 [pointing out that Knight analysis is more complex than summarily concluding that "`primary assumption of the risk' applies only and always when (i.e., because) the defendant is a coparticipant in a sports activity'"].) Thus, the question of whether Petrick owed Mastro a duty of care does not necessarily turn on whether or not snowboarding and skiing are the same "sport" (a question which, though the author may have a strong personal opinion about, need not be decided here), but instead depends more generally on the parties' relationship to the activity Petrick (as the defendant) was engaged in. In other words, Petrick's duty of care to persons in his sporting venue depends on the risks inherent in his sport.
In Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 462, the court stated: "In this case, in which defendant had no participatory involvement in the activity undertaken by plaintiff, the decision in Knight does not define whatever duty was owed by defendant to plaintiff." Parsons involved the liability of a garbage company for its trucks' frightening of the plaintiff's horse. There the defendant had no relationship whatsoever to the sporting activity, and therefore removed the situation from Knight's duty based analysis that focused on the sporting defendant's duty of care. Thus, the Parsons court's recognition that the Knight analysis focused on "parties who have some organized relationship with each other and to a sporting activity" ( Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 482) was simply restating the analysis we focus on here: examining the nature of the activity and the parties relationship to the activity. There is no question that snowboarders and skiers properly occupying the same ski slope "have some organized relationship with each other."
The parties debate the applicability of the Third District Court of Appeal's decision in Campbell v. Derylo (1999) 75 Cal.App.4th 823 ( Campbell), wherein the court quickly dismissed the notion that skiers and snowboarders were not coparticipants for purposes of assumption of risk. The court stated:
"We quickly dismiss plaintiff's contention that there is a triable issue over whether plaintiff and defendant were coparticipants. At Heavenly Valley Ski Resort, skiers and snowboarders share the same slope. Both parties were in a designated ski area; moreover, putting on and taking off equipment is an integral part of the sport. Skiing, like ice skating, is a sport which may be engaged in just as well alone as with others. There is no requirement that athletes be acquainted with each other or join together in order to be considered coparticipants within the meaning of Knight. (See Staten v. Superior Court [(1996) 45 Cal.App.4th 1628,] 1633 [figure skater assumes risk of collision with other skaters even when skating solo, where `proximity to one another created certain risks of collision'].)" ( Id. at p. 827, fn. 1.)
The Campbell court implicitly recognized that, whether or not engaged in the same "sport," both parties were in a designated "ski" area and that one owed no duty to the other to avoid mere negligent or careless conduct. Our conclusion is no different. We simply do not rest it on the assumption that the parties need to be labeled "coparticipants" to reach this result.
Accordingly, given the nature of the activity of snowboarding (descending a snow covered mountain), and the relationship of Mastro to that activity (descending the same snow-covered mountain on skis), under Knight it is clear Petrick owed no legal duty to protect Mastro from the particular risk of harm that caused Mastro's injuries (i.e., that a snowboarder may be negligent or careless). Put more generally, one who is pursuing his sport in an appropriate venue owes no duty of care to those who choose to occupy the same venue to engage in their (possibly different) activity simultaneously. Thus, to the extent Mastro is "assuming a risk," the risk he is assuming is that he is occupying a venue with others that owe him no duty of care.
The "relationship" of the parties to the activity and how that affects the duty of care will vary greatly depending on the facts of any given case. For example, a situation where the plaintiff's relationship to the activity is as student and the defendant's is as a coach may lead to a different result. (See, e.g., Tan v. Goddard (1993) 13 Cal.App.4th 1528, 1534-1536 [using Knight's "relationship to activity" analysis to conclude jockey instructor owes duty to student]; Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 822-824 [also relying on Knight and stating "we must look then both to the nature of the sport and to the roles and relationship of the parties" ( id. at p. 1822) to conclude instructor owed duty of care to plaintiff student].)
The appropriateness of this analysis is made clear by a case relied on in Knight, Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733 ( Ratcliff). In Ratcliff a spectator walking in the stands was injured by an accidentally thrown bat. She sued both the player who threw the bat and the baseball stadium owner. The court of appeal affirmed a jury verdict finding in favor of the player and against the stadium owner. The Knight court accepted the Ratcliff court's implicit reasoning: "that two different potential duties were at issue — (1) the duty of the ballplayer to play the game without carelessly throwing his bat, and (2) the duty of the stadium owner to provide a reasonably safe stadium with regard to a relatively common (but particularly dangerous) hazard of a thrown bat." ( Knight, supra, 3 Cal.4th at p. 317.) Clearly, the spectator was not a coparticipant in the baseball game. Nevertheless, the Knight court accepted the assumption that the relationship of the plaintiff (being a spectator) to the activity was not a relationship that should create a duty of care on the part of the ballplayer. Rather, the ballplayer was performing his sport in a place properly designated for it, and should not be restrained from vigorously engaging in his sport. Similarly, Petrick should not be restrained or inhibited from vigorously engaging in his sport (snowboarding) because of the presence of skiers on the same slope.
Finally, as set forth more fully below, we note that we do not dispute Mastro's contention that Petrick had a duty of care not to "increase the risks to a participant over and above those inherent in the sport." ( Knight, supra, 3 Cal.4th at 316.) Mastro defines "the sport" however, as skiing, and therefore concludes that because snowboarding involves different risks than skiing that a snowboarder's mere presence on a slope utilized by skiers increases the risks to skiers over and above those risks inherent in the sport of skiing. We do not doubt this may be true. Nevertheless, as explained above, to the extent Petrick is engaged in his sport of snowboarding in an area designated for snowboarding, the doctrine of assumption of risk protects him from claims of negligence unless he creates a risk over and above those risks inherent in the sport of snowboarding. Thus, even if Mastro is correct that the nature of the sport of snowboarding increases the risk of harm to skiers on the same slope, the snowboarder's duty is unaltered by this fact because the nature of a defendant's duty is defined by the activity he engages in.
Again, this is presuming the parties' relationship to the activity does not, as a matter of public policy, mandate a different result. That is not the case, where, as here, the plaintiff skis where others are properly allowed to snowboard.
Was Petrick's Conduct Reckless?
As stated previously, where assumption of risk applies, those engaged in a sport or recreational activity have only a legal duty not to "engage in conduct that is so reckless as to be totally outside the range of ordinary activity found in the sport." ( Knight, supra, 3 Cal.4th at p. 320.) The record shows that Mastro did not argue in the summary judgment proceedings (nor does he argue on appeal) that Petrick intentionally injured him. The question we must decide, then, was whether Petrick's summary judgment motion established that his conduct on the slope was not reckless.
On appeal, Mastro takes two approaches to challenging Petrick's evidence that he was not reckless. First, he largely ignores the evidence below and argues that snowboarding is, essentially, as a matter of law reckless and therefore a question of fact exists regarding Petrick's liability. Second, without citation to the record, he contends Petrick's "clear violation of [Mastro's] right of way and at least two safety rules governing Petrick's activity . . . in conjunction with the snowboarding stance" increase the risks inherent in the sport of skiing. We deal with each of these arguments in turn.
Snowboarding is Not "Inherently Reckless"
Mastro argues that engaging in the sport of snowboarding where others may be skiing is reckless because a snowboarder descends the hill "in such a way that he could not see other participants whose paths below might intersect his." He claims that "[t]he stance used by snowboarders creates a blind spot and a snowboarder who does not turn so that he sees into the blind spot is engaged in an activity which increases the risk of harm inherent to those skiing nearby."
We reject this "snowboarding is inherently reckless" argument. Petrick is entitled to engage in his sport in an area designated for his sport and, under Knight, is entitled to the protection of the doctrine of assumption of risk. Thus, the proper question is whether Petrick adequately established that Mastro could present no evidence of other things Petrick may have been doing (i.e., risks not inherent to snowboarding) that increased the risk of harm to Mastro. In other words, even assuming that an inherent risk to snowboarding is that snowboarders may have more limited vision than skiers when descending a hill, the proper question is not "is snowboarding reckless?" but instead, "was Petrick snowboarding recklessly?"
Was Petrick Snowboarding Recklessly?
On appeal, Mastro fails to point to any evidence in the record below of reckless or intentional conduct, instead relying solely on his "snowboarding is inherently reckless" theory. Issues not raised, or merely mentioned without reasoned argument or authority, are considered waived. ( In re Marriage of Fink (1979) 25 Cal.3d 877; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.) Further, Mastro admits on appeal that the alleged reckless conduct he complains of would only be reckless "in conjunction with the snowboarding stance" and therefore implicitly concedes the issue. In any event, Mastro failed to counter Petrick's evidence that he was not reckless and summary judgment was therefore proper.
Petrick's moving papers listed the following relevant "undisputed" facts:
"10. Steve Petrick was traveling approximately 30 miles per hour prior to the impact.
"11. Steve Petrick was not out of control prior to the impact.
"12. Steve Petrick first observed Robert Mastro just before the collision took place."
In support of these facts Petrick presented his own deposition testimony as well as that of a witness regarding his speed and whether he appeared "in control." Prior case law makes clear that these facts, if undisputed, sufficiently establish that Petrick's conduct that may have caused the accident was, if anything, merely negligent and a risk inherent in being on a slope with snowboarders. Mastro did not significantly dispute Petrick's speed, merely countering that Petrick was traveling 30 -35 miles per hour. That someone will descend the slope too fast and therefore cause a collision is an inherent risk in being on a slope. ( Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12.) Mastro further presented an expert declaration below that Petrick was "out of control" based on the circular reasoning that if he were in control he would have been able to avoid the collision. Mastro would need some evidence other than such circular reasoning to create a question of fact that Petrick was reckless: prior cases (and common sense) make clear that a collision with another on the slope is an inherent risk of being on the slope. ( Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 [citing the Court of Appeal's reliance on O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193 and Daniely v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 123 for the general proposition that "Collision with other skiers is considered an inherent risk of the sport"].) Finally, that Mastro was unable to dispute whether Petrick saw Mastro prior to immediately before impact simply substantiates that he has no claim that Petrick's collision with him was intentional, which, as stated above, he has never alleged. Thus, while Mastro presented extensive "disputed facts" below, none of them did anything more than raise the inference that Petrick may have been negligent or careless in the manner in which he chose to snowboard.
Mastro also claims on appeal that Petrick's "choice" to proceed straight down the hill rather than making "wide, sweeping" turns to increase his field of vision raises a triable question of fact regarding whether he recklessly increased the risk of harm to Mastro. Mastro presented no evidence or argument regarding the alleged recklessness of failing to make "sweeping turns" below and the issue is waived. ( Ochoa v. Pacific Gas Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.)
Finally, Mastro introduced extensive evidence below regarding the Skier Responsibility Code and its application to the determination that Petrick acted recklessly by skiing "too fast" and "out of control." He has abandoned this theory on appeal and it, too, is considered waived. In any event, to the extent Mastro contends that the Skier Responsibility Code provides for a higher duty of care than called for by Knight such a theory is expressly contrary to Knight. In Knight the court recognized that the "rules" of a game are likely to be negligently or carelessly broken and that is exactly the activity for which a sports participant will not be liable. ( Knight, supra, 3 Cal.4th 296.) The Skier Responsibility Code is not a statute and essentially simply constitutes the "rules of the game" of skiing or snowboarding. To the extent Mastro contends Campbell v. Derylo, supra, holds otherwise, we disagree. The Campbell case considered whether a defendant's decision to ski without a mandatory strap on his snowboard "`involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game.'" ( Campbell, supra, 75 Cal.App.4th at p. 830.) A defendant's knowledge that he was snowboarding without safety equipment creates a much closer question of reckless or intentional conduct than does evidence that a defendant engaged in behavior commonly recognized as an inherent risk of being on a slope. The Campbell court did not hold, as Mastro implies, that the defendant's violation of the Skier Responsibility Code automatically created a question of fact regarding recklessness.
See also Cheong v. Antablin, supra, 16 Cal.4th 1063 (expressly not deciding question of whether a local ordinance could impose a greater duty of care than that contemplated by Knight by statute).
In sum, snowboarding down a hill where both skiing and snowboarding are authorized, even if doing so "too fast" and while arguably "out of control," is at best careless or negligent conduct under the facts of this case and is not "so reckless as to be totally outside the range of ordinary activity found in the sport." ( Knight, supra, 3 Cal.4th at p. 320.) Further, as pointed out by the trial court in its order granting the summary judgment motion, "[p]rohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport," which is exactly what the Knight court sought to avoid. ( Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1394.)
Summary judgment was proper.
DISPOSITION
The judgment is affirmed. Costs to respondent.We Concur:
LEVY, J.
Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.