HORVATH ET AL., APPELLEES, v. ISH ET AL., APPELLANTS.
No. 2011-1089
Supreme Court of Ohio
Submitted April 25, 2012—Decided November 20, 2012.
134 Ohio St.3d 48, 2012-Ohio-5333
CONCLUSION
{182} Because none of Reynoldsburg‘s propositions of law is well taken, we affirm the orders of the commission.
Orders affirmed.
O‘CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., concurs in judgment only.
Taft, Stettinius & Hollister, Mark S. Yurick, and Jason H. Beehler; and James E. Hood, Reynoldsburg City Attorney, for appellant.
Michael DeWine, Attorney General, William L. Wright, Section Chief, and Thomas G. Lindgren and Devin D. Parram, Assistant Attorneys General, for appellee.
Matthew J. Satterwhite, Marilyn McConnell, and Steven T. Nourse; and Porter, Wright, Morris & Arthur and Kathleen M. Trafford, for intervening appellee.
Elizabeth H. Watts and Amy B. Spiller, urging affirmance for amicus curiae Duke Energy Ohio, Inc.
Thompson Hine, L.L.P., Scott A. Campbell, Kurt P. Helfrich, and Michael L. Dillard, urging affirmance for amicus curiae Ohio Rural Electric Cooperatives, Inc.
I. Introduction
{11} The issue before the court is what duty or standard of care is owed by one skier to another for purposes of determining tort liability. We hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier‘s actions were reckless or intentional.
{12} The court of appeals reversed the trial court‘s grant of summary judgment in favor of Ish and remanded the case to the trial court to determine whether Ish had violated any duties under
II. Facts and Procedural History
{13} On March 6, 2007, Angel Horvath and Eugene Horvath (the couple were married after the accident but before the complaint was filed) were skiing at Boston Mills ski resort. David Ish was snowboarding at Boston Mills on that same date, with his brother, Tyler, and their cousins. In the early evening, Angel and Eugene were skiing down Buttermilk Hill. David, Tyler, and their cousins were snowboarding on the same hill. David and his relatives proceeded through a terrain park1 and then reentered Buttermilk Hill, where David and Angel collided. Angel was injured in the accident.
{15} The Ishes filed a motion for summary judgment, arguing that skiers are subject to primary assumption of the risk, which means that a defendant owes no duty of ordinary care to plaintiff. Thus, the Ishes argued that in order to recover, the Horvaths were required to prove that David had acted recklessly or intentionally in causing the collision. The Ishes further asserted that there was no evidence that David‘s actions were reckless or intentional.
{16} In opposing the Ishes’ motion for summary judgment, the Horvaths argued that
{17} In a two-to-one decision, the court of appeals reversed the judgment of the trial court, stating that “[b]y reading
{18} This case is before this court pursuant to the acceptance of the Ishes’ discretionary appeal. 129 Ohio St.3d 1503, 2011-Ohio-5358, 955 N.E.2d 386.
III. Analysis
R.C. Chapter 4169
{19} We begin our analysis by determining whether
{110} When interpreting a statute, a court‘s paramount concern is legislative intent. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003-Ohio-1630, 786 N.E.2d 39, ¶ 12. “[T]he intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. However, “[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson, 77 Ohio St.3d 334, 336, 673 N.E.2d 1347 (1997). “A court must examine a statute in its entirety rather than focus on an isolated phrase to determine legislative
{111}
{12}
{13} And finally,
{14} It is evident that
{16}
{17} Accordingly, we hold that
Common Law
{18} Having determined that
{119} Clearly, skiing is a sport or recreational activity. However, “only those risks directly associated with the activity in question are within the scope of primary assumption of risk.” Id. at 432, citing Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925). “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.” Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, 844 N.E.2d 408, ¶ 19 (6th Dist.), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App.3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). Where the risk at issue is not inherent, then a negligence standard applies. See Gallagher, 74 Ohio St.3d at 432, 659 N.E.2d 1232; see also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744, 2005 WL 2179317 (colliding with a truck on a road is not an inherent risk of riding an all-terrain vehicle); Goffe v. Mowell, 2d Dist. No. 98-CA-49, 1999 WL 55693 (Feb. 5, 1999) (faulty racetrack design is not an inherent risk of go-cart racing).
{20} The Supreme Court of Pennsylvania has recognized that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions. As anyone who has ever undertaken the sport of skiing is painfully aware, it is a sport in which it is common for the participants to lose control.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). Other courts have also recognized that collisions between skiers are an inherent risk in the sport of skiing. See Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn.App.2007); Cheong v. Antablin, 16 Cal.4th 1063, 1069, 68 Cal.Rptr.2d 859, 946 P.2d 817 (1997); Gern v. Basta, 809 N.Y.S.2d 724, 725, 26 A.D.3d 807 (2006). We agree that collisions between skiers are an inherent risk of skiing.
{21} Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier‘s actions were reckless or intentional.
IV. Conclusion
{22} The judgment of the court of appeals is affirmed, albeit on somewhat different grounds. We agree that there is a genuine issue of material fact to be considered, but only with regard to whether Ish‘s actions were more than negligent, that is, whether he acted recklessly or intentionally. Because a
Judgment affirmed.
O‘CONNOR, C.J., and O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., concurs in part and dissents in part.
PFEIFER, J., concurring in part and dissenting in part.
{123} I concur in the majority‘s judgment affirming the appellate court‘s decision to reverse the trial court‘s granting of summary judgment. However, I do not agree with the majority‘s baffling interpretation of
A Skier‘s Statutory Duties
{124} The fact that
In a skier collision case, the laws differ from state to state on the duty of care one skier owes to another. The jurisdictions can be divided into two classifications. The prevailing view holds skiers to a standard of reasonable care to avoid injury to another skier. The standard of care is usually founded on a statutory principle obliging a skier to exercise reasonable care and to yield the right of way to the skier below. One skier does not assume the risk of another‘s negligence; a skier collision is not a risk “inherent” in the sport as skiing is not a contact sport.
{25} The duties between skiers, understood since Norwegians first strapped planks to their feet 4,500 years ago—ski under control and do not run into another skier, among others—are now part of Ohio statutory law. Those duties are set forth in
(C) A skier shall have the following responsibilities:
(1) To know the range of the skier‘s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier‘s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;
(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall.
{26} Contrary to the majority‘s assertion, it is possible for the General Assembly in one statutory chapter to protect ski-area operators from liability while at the same time providing some protection for skiers.
{27} But it is
{128} If
{29} Finally,
{130} Read as a whole,
Liability for Breach of Skier‘s Statutory Duty in Michigan
{131} In Rusnak v. Walker, 273 Mich.App. 299, 729 N.W.2d 542 (2006), the court—a special panel called pursuant to Michigan law to resolve an appellate conflict—addressed whether a skier could sue another skier pursuant to Michigan‘s Ski Area Safety Act (“SASA“). The statutory scheme in Michigan is substantially similar to Ohio‘s. The Michigan law places duties on skiers to ski safely and not injure other skiers,
{132} But Michigan‘s statutory scheme contains an important provision missing from Ohio‘s: it lists “collisions * * * with other skiers” as one of the inherent risks of skiing.
{133} Even so, the Michigan court held that despite a statutory recognition that colliding with other skiers is an inherent danger of skiing, a skier could recover for injuries caused by another skier‘s failure to live up to the responsibilities set forth in the SASA:
As we have already noted, we hold that the SASA assumption-of-risk provision contains clear and unambiguous language, providing in no uncertain terms that a collision between skiers is an obvious and necessary danger that inheres in the sport of skiing. However, in those cases in which a plaintiff can establish that a defendant violated one of the specific duties imposed by the SASA, the plaintiff can still recover damages to the extent that the defendant‘s violations caused the plaintiff‘s injuries. To state it differently, it is possible, and therefore skiers assume the risk, that a collision can occur between skiers when neither skier is violating his or her duties under the SASA. That is, it is an obvious and necessary danger of skiing that sometimes accidents simply happen. But, again, if it can be shown that the collision resulted from a violation of the act, then the violator is to be held liable for the damage caused, as provided under [Mich.Comp.Laws Ann.] 408.344.
Rusnak, 273 Mich. App. at 305, 729 N.W.2d 542.
{134} The court noted in Rusnak that if it were to hold that there is no liability for injuries to a skier caused by another skier‘s failure to meet his or her statutory duties, “the duties and liabilities placed on individual skiers would have no meaning.” Id. at 309. But the majority does in this case what Rusnak warns against, finding that the statutory provision—“A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier‘s failure to fulfill any of the responsibilities required by this chapter“—is meaningless.
Ordinary Care
{35} In its remand to the trial court, the court of appeals suggested that the trial court should consider whether David Ish violated any of the duties outlined in
{136} To successfully prosecute a claim for negligence, a plaintiff must prove that the defendant owed the plaintiff a duty, that the defendant breached that duty, and that the breach of the duty proximately caused the plaintiff‘s injury. Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 108-109, 113 N.E.2d 629 (1953). “[A] duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case.” Chambers v. St. Mary‘s School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998). In certain instances, the failure to perform a statutory duty is negligence per se, meaning that “the plaintiff has
{137} But negligence per se does not follow from every violation of a statutory duty; violation of a statute may simply constitute evidence of negligence. “[T]he distinction between the two depends upon the degree of specificity with which the particular duty is stated in the statute.” Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 727 N.E.2d 1277 (2000). As this court put it in Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935), paragraph four of the syllabus:
The distinction between negligence and “negligence per se” is the means and method of ascertainment. The former must be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.
That is, when a statute requires performance of specific acts, a jury need determine only whether the specific acts were performed, and if it determines that they were not performed, the defendant is negligent per se; but when the statute instead sets forth general rules of conduct that must be followed, a jury must use its judgment in evaluating the circumstances to determine whether the defendant was negligent. In the latter instance, the typical duty of care for negligence applies:
Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.
Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), paragraph one of the syllabus.
{138} In this case, the defendant may have violated several of the responsibilities of
{39} Thus, the General Assembly has set forth a statutory duty of ordinary care for skiers. Ingrained in that ordinary-care standard is the recognition that skiers are on skis, are on a slippery surface, and are engaged in a somewhat dangerous activity.
Common Law
{40} As stated above, I dissent from the majority‘s holding that
{41} Like many other states, Connecticut has a ski-safety statutory scheme; such statutory schemes are like snowflakes—no two are exactly alike. See, e.g., Frakt & Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 Idaho L.Rev. 227, 230 (1992), fn. 12. The Connecticut statute at issue in Jagger did not contain the declaration found in the Ohio and Michigan statutes that a skier is liable to another skier for injuries caused by the skier‘s failure to meet his or her statutory responsibilities. The Connecticut statute did state that collisions with other skiers are an inherent risk of skiing,
{42} In Jagger, the court applied a four-part test “to evaluate the various policy considerations relevant to the determination of the extent of the defendant‘s duty.” Id. at 700. The court had developed the test in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), to determine the standard of care applicable to participants in a soccer game. The elements of the test include
“(1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.”
Jagger at 700, quoting Jaworski at 407.
{143} As for the first factor, the normal expectations of the participants in the sport, I agree with the Jagger court that although ski collisions can be frequent, skiers expect their fellow skiers to abide by the commonly accepted, fundamental rules of skiing:
While collisions with other skiers are fairly common, frequency of occurrence is not the ultimate touchstone in evaluating the expectations of participants in the sport. Rather, we perceive the expectations of skiers to be that fellow participants in the sport will conduct themselves in a manner befitting the dangerous potentialities attendant with the sport. Thus, skiers will expect that other skiers will follow the rules and generally accepted practices of the sport of skiing. Indeed, our statutory scheme regarding ski liability confirms that skiers should possess such expectations as they take part in the sport. * * * The normal expectations of skiers will be that fellow skiers will ski in a reasonable and appropriate manner.
{144} Like Connecticut‘s, our state‘s statutory scheme sets forth responsibilities for skiers that should create in the minds of other skiers the expectation that collisions are not an acceptable part of the sport.
Always stay in control, and be able to stop or avoid other people or objects.
People ahead of you have the right of way. It is your responsibility to avoid them.
You must not stop where you obstruct a trail or are not visible from above.
Whenever starting downhill or merging into a trail, look uphill and yield to others.
Always use devices to help prevent runaway equipment.
Observe all posted signs and warnings. Keep off closed trails and out of closed areas.
Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.
http://www.nsaa.org/nsaa/safety/responsibilitycode (accessed Nov. 1, 2012).
{146} Unlike in sports like football, basketball, or soccer, in which contact with other participants is part of the very nature of the sport, contact with another individual in skiing is outside the nature of the sport; any contact at all between skiers transforms skiing into an unacceptably dangerous proposition. The expectation among skiers is that their fellow skiers appreciate that safety is essential for everyone‘s enjoyment of the sport.
{147} As for the second factor—balancing the encouragement of participation in the sport against concern for the safety of participants—I agree with the court in Jagger that encouraging responsible behavior by skiers tends to encourage participation:
As for the second Jaworski factor, we conclude that the balancing of the public policy of the encouragement of vigorous participation in the sport of skiing and the protection of the safety of its participants weighs in favor of a negligence standard. We believe that requiring skiers to participate in the reasonable manner prescribed by the rules of the sport actually will promote participation in the sport of skiing. Should the threshold for liability be placed at a level that only reckless or intentional misconduct can serve as grounds for liability, many of the potential harms caused by
coparticipants in the sport will go unremedied and, therefore, dissuade potential participants from taking part in the sport. Additionally, a standard of reasonableness also operates to protect the safety of participants in the sport of skiing.
Jagger, 269 Conn. at 702-703, 849 A.2d 813.
{48} I agree that there is a minimal price to pay, if any, for increased safety on ski slopes. That skiers could feel safer when skiing would tend to inure to the benefit of participation rates. Colorado, whose economy is much more dependent on skiing than Ohio‘s, statutorily recognizes the right of skiers to recover damages from other skiers who cause injuries.
{149) The third factor, the potential increase in litigation, is a minimal factor in the analysis. Contact with other skiers is not a regular part of skiing; collisions are rare enough that our courts would not be clogged by claims. As the court recognized in Jagger, this situation might be different in other sports:
For instance, in Jaworski we recognized quite correctly that the imposition of a negligence standard in contact sports would result undesirably in the potentiality of a civil action arising out of any foul, any hit batsman, or any clipping penalty. The same potential for undesirable numbers of civil actions is not present in the context of skiing. As discussed previously, abiding by the rules of the sport of skiing will eliminate the overwhelming majority of contact between skiers.
{1150} The fourth element of the Jaworski test is a consideration of the law in other jurisdictions. We have the benefit of relying on the court‘s well-reasoned decision in Jagger. Jagger relied on Novak v. Virene, 224 Ill.App.3d 317, 321, 166 Ill.Dec. 620, 586 N.E.2d 578 (1991), in which the court stated:
As in the individual sports of running and bicycling, there is the possibility of collisions in downhill skiing. But by one‘s participation in the sport, one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable. Therefore, the concern that the possibility of a
negligence lawsuit would damper vigorous participation is inapplicable to downhill skiing. There is no reason to expand the limited contact sports exception to exempt downhill skiers from negligence liability if they negligently collide with other skiers. Many activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another‘s negligence. Defendant‘s conduct should be governed by ordinary negligence standards.
{151} In a Utah case, Ricci v. Schoultz, 963 P.2d 784, 786 (Utah App.1998), the court held that “a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty.” Even though there was no negligence in the Ricci case, the case did hold that negligence was the proper legal standard to apply.
{52} Interpreting Vermont law in Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir.1992), the court held that a skier can be liable to another skier for injuries caused by the skier‘s negligence, but made clear that not every collision is caused by negligence:
The law is clear. “[T]he standard of conduct needed to discharge a duty of care in any given situation [is] measured in terms of the avoidance of reasonably foreseeable risks to the person to whom such duty is owed.” Green v. Sherburne Corp., 137 Vt. 310, 403 A.2d 278, 280 (1979). Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. See LaFaso v. LaFaso, 126 Vt. 90, 223 A.2d 814, 817-18 (1966). One skier is not the insurer of another skier‘s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. See, e.g., LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 734-35 (10th Cir.1977).
Thus, a jury might conclude that skiers who lose control even while exercising due care—that is, have breached no duty owed to other skiers—may pose a danger which is inherent, obvious and necessary to participants in the sport of skiing. * * * “If the fall is due to no breach of duty on the part of the defendant, its risk is assumed in the primary sense, and there can be no recovery.” Sunday [v. Stratton Corp.], [136 Vt. 293, 302], 390 A.2d 398 [(1978)]. Where the facts on assumption and breach of duty are in dispute and more than one reasonable inference may be drawn from them, the question of negligence is for the jury. See LaFaso, 223 A.2d at 819.
{1153} Further, in Peterson v. Chichester, 157 Vt. 548, 600 A.2d 1326 (1991), the Vermont Supreme Court upheld a jury verdict in a collision-between-skiers case in which the negligence of the defendant and comparative negligence of the plaintiff were at issue. Similarly, in Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991), the Supreme Court of Idaho decided a case involving the negligence of a skier in a collision between skiers.
{54} Applying the four Jaworski factors to the sport of skiing leads to the conclusion reached by the court in Jagger: “the proper standard of care owed by coparticipants in the sport of skiing is that of reasonable care.” Jagger, 269 Conn. at 704, 849 A.2d 813. Even assuming that the majority correctly found that no statutory duty exists between skiers in Ohio, it should have found a common-law duty of reasonable care between skiers, as courts in Connecticut, Illinois, Utah, Vermont, and Idaho have done.
Recklessness
{155} I dissent from the majority‘s holdings that neither Ohio‘s ski statutes nor the common law creates a duty between skiers. An accident like the one in this case is not one that a person would assume would take place when undertaking the pleasant family activity of skiing. Children, seniors, beginners, and handicapped people use ski slopes; to require, as the majority does, no greater standard of care than to refrain from recklessness will make Ohio‘s ski areas more dangerous for everyone. “[C]ontact between skiers is neither a part of the sport that skiers agree to confront by their participation, nor is it an inevitable byproduct of the sport of skiing.” Jagger, 269 Conn. at 704, 849 A.2d 813.
{156} However, the majority admits that the defendant is liable for the plaintiff‘s injuries if he was acting recklessly on the slopes on the day in question. I agree that if recklessness is the standard of care in this case, there is a genuine issue of fact for a trier of fact to determine. There is testimony establishing that the defendant was uphill of Angel Horvath and merging onto the slope in question, looking backward, and making a sudden change of course when he struck her. Evidence supports the plaintiffs’ contention that the defendant violated numerous statutory responsibilities contained in
Conclusion
{157} The trial judge erred by granting summary judgment in a case that presents factual issues for trial. The case has now snowballed into a case that eviscerates a statutory scheme that has well served the sport and industry of skiing for a long time. The General Assembly ensured that we owe a greater duty, a duty of ordinary care, to each other. The majority has removed that duty and today has made skiing in Ohio appreciably more dangerous. I trust that Ohio‘s skiers will not look to this court, but instead to their common sense, their peers, and information provided by ski areas to determine what is acceptable behavior on Ohio‘s ski slopes.
Paul W. Flowers Co. and Paul W. Flowers; and Sennett Fischer, L.L.C., and James A. Sennett, for appellees.
Gallagher Sharp, Timothy J. Fitzgerald, and Jeremy V. Farrell, for appellants.