Tatum SOUZA, A Minor, etc., Plaintiff and Appellant,
v.
SQUAW VALLEY SKI CORPORATION et al., Defendants and Respondents.
Court of Appeal, Third District.
*391 Bradley Paul Elley for Plaintiff and Appellant.
Hancock Rothert & Bunshoft, Duane Morris, LLP, John E. Fagan, Tahoe City, Paul J. Killion, San Francisco, Jill Haley Penwarden, Tahoe City, and Michael J. Reitzell for Defendants and Respondents.
*390 DAVIS, Acting P.J.
In this negligence and strict products liability action, a child skier collided with a plainly visible, aluminum snowmaking hydrant located on a ski run. The trial court granted summary judgment to the ski resort and the hydrant distributor, deeming the collision an inherent risk of skiing under the primary assumption of risk doctrine and finding no basis for the products liability claim. We affirm. The pertinent facts will be set forth in the discussion that follows.
DISCUSSION
1. 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).) An appellate court determines on its own whether these criteria have been met. (Jambazian v. Borden (1994)
2. Background
The summary judgment papers show the following undisputed facts.
On January 22, 2001, then 8-year-old plaintiff Tatum Souza (Souza), an intermediate skier, collided with a snowmaking hydrant on the Mountain Run ski trail at defendant Squaw Valley Ski Corporation's resort (Squaw Valley), injuring her mouth. The accident occurred when Souza caught her ski edge and lost her balance, causing her to veer to the right and collide with the hydrant.
The snowmaking hydrant that Souza collided with was "plainly visible." At the *392 time of the collision, Souza was skiing with her family; the weather was overcast, the wind was calm, and the surface condition was packed powder. No one saw what part of the hydrant Souza hit; given her injuries, it appeared to be the nozzle.
Souza collided with the hydrant on her last run down the Mountain Run trail on January 22. She had skied this trail about 40 previous times, including once before in 2001.
The hydrant at issue was located 50 feet from the left side of the Mountain Run trail and approximately 27 feet to the left of a tree situated toward the right side of the trail; there is also room for skiers to go to the right of this tree on the trail. On the day of the accident, the hydrant protruded above the snow level about five to six feet. The hydrant was padded but its nozzle apparently was not.
Souza sued Squaw Valley for negligence and for willful failure to warn, alleging that the metal snow hydrant was inadequately padded and negligently located in a commonly congested area of the ski trail. Souza also sued Squaw Valley and defendant York Snow, Inc. (the seller-distributor of the hydrant) for strict products liability for a defective product the defectively padded and placed snow hydrant and nozzle, pointed uphill.
3. Negligence and Willful Failure to Warn
a. Negligence
The doctrine of primary assumption of risk a concept in negligence law applies where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks. (Knight v. Jewett (1992)
The issue of duty "in the primary assumption of risk context `is a legal question which depends on the nature of the sport or activity ... and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.'" (Connelly, supra, 39 Cal. App.4th at pp. 11-12,
As we noted in Connelly, this court has listed the risks inherent in snow skiing on more than one occasion. "`"`Each person who participates in the sport of [snow] skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious *393 and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow[]making or snow[]grooming equipment. (Danieley v. Goldmine Ski Associates, Inc. (1990)
Connelly involved a skier's collision with a ski lift tower. In that decision, we affirmed a summary judgment for the ski resort under the doctrine of primary assumption of risk based on this inherent risk. Connelly plows the course of our analysis here.
Similar to the plaintiff in Connelly, Souza indisputably collided with plainly visible snowmaking equipment while skiing. As noted, this risk is inherent in the sport. Consequently, the trial court properly granted summary judgment on this point, concluding that Squaw Valley, under the doctrine of primary assumption of risk, owed no duty to protect Souza against this inherent risk.
Also similar to the plaintiff in Connelly, Souza argues that Squaw Valley breached what has been recognized as a duty in this realm: the "`duty to use due care not to increase the risks to a participant over and above those inherent in the sport.'" (Connelly, supra,
Although the snowmaking equipment was located on the ski run, no one has disputed there was sufficient room on either side of the equipment for skiers to pass by it. Although Souza claims the equipment was inadequately padded, we are not aware of any relevant legal authority, and we have not been directed to any, requiring a ski area operator to pad its plainly visible snowmaking equipment. (See Connelly, supra, 39 Cal.App.4th at pp. 12-13,
The undisputed plain visibility of the snowmaking hydrant distinguishes this case from one on which Souza heavily relies, Van Dyke. In Van Dyke, the court reversed a summary judgment, finding a triable issue of fact as to whether the ski resort there had increased the risk of *394 harm by placing a signpost in a ski run where it was "virtually invisible" to skiers crossing the run. (Van Dyke, supra, 67 Cal.App.4th at pp. 1317, 1318,
Souza's argument regarding the duty not to increase the risks above those inherent in skiing focuses on the concept of what is "necessary" to the sport. As noted, pursuant to the doctrine of primary assumption of risk, "`"`[e]ach person who participates in the sport of [snow] skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary.'"'" (Connelly, supra,
We have two responses to this argument about what is "necessary." First, the snowmaking hydrant was necessary to the extent the sport of snow skiing, as its name implies, necessarily requires snow, and mother nature on the winter date of this accident January 22, 2001 had not yet seen fit to drop enough flakes for an adequate cover. Viewed this way, snowmaking equipment is certainly more "necessary" for skiing than the directional signs acknowledged as "necessary" in Van Dyke. (Van Dyke, supra,
Second, we considered and rejected in Connelly a similar argument about what is "necessary" by quoting from an out-of-state decision, Verro v. New York Racing Ass'n, Inc. (1989)
Descending along a similar path, Souza points to the state Supreme Court's recent decision in Kahn v. East Side Union High School Dist. (2003)
Based on Kahn, Souza argues that Squaw Valley, as "the owner or operator of a facility[,] has a duty to take reasonable steps to minimize risks without altering the nature of the sport, even if such risks are inherent in the sport." Phrased this way, Souza's argument would undermine the doctrine of primary assumption of risk in the fashion noted above in Connelly's quote of Verro by imposing a duty to minimize the inherent risks of a sport if dangers theoretically could be reduced. If this were the rule, "`[t]hen, obviously, such risks would not be . . . "inherent",'" and the primary assumption of risk doctrine would be undermined because the critical inquiry would become whether the defendant had a feasible means to minimize the dangers. (Connelly, supra,
Souza's argument from Kahn does not fare any better when we move from the world of legal theory and logic to the practical world laid before us. The facility operator here Squaw Valley provided a place for snow skiers to ski. In that vein, Squaw Valley erected plainly visible and generally avoidable snowmaking equipment on a ski run. An inherent risk arose that a skier would run into such equipment. Kahn does not impose a duty on Squaw Valley to minimize such an inherent risk, just as Kahn would not have imposed a duty on the stadium owner to have minimized the risk to the catcher from a carelessly thrown bat from the batter that is an inherent risk of playing the game.
We conclude that summary judgment was properly granted on Souza's negligence cause of action.
b. Willful Failure to Warn
In her complaint, Souza also alleges based on the same facts as her negligence count that Squaw Valley willfully failed to warn or guard against the dangerous condition involving the snowmaking hydrant and nozzle. This count falls victim to summary judgment for three reasons.
First, as the trial court recognized, such willful misconduct embodies "`"`an aggravated form of negligence, differing in quality rather than degree from ordinary *396 lack of care.'"'" (New v. Consolidated Rock Products Co. (1985)
Second, Souza argues that intentionally locating an unnecessary hazard in a narrow, heavily traveled ski run constitutes willful misconduct. This argument pivots on the knowingly dangerous placement of an unnecessary hazard, the snowmaking hydrant. (See New, supra,
Finally, because of the obvious danger, the very existence of a large, metal, plainly visible snowmaking hydrant serves as its own warning. (See Connelly, supra,
4. Strict Products Liability
Souza's final cause of action alleges that the snowmaking equipment the hydrant and nozzle was defective under the strict products liability doctrine because of its defectively designed location, padding and uphill direction.
Under this doctrine, a manufacturer or other relevant entity in the stream of commerce is strictly liable in tort when a product it places on the market, "knowing that [the product] is to be used without inspection for defects, proves to have a defect that causes injury to a human being." (Greenman v. Yuba Power Products, Inc. (1963)
The problem for Souza on this cause of action is that she neither used the hydrant and nozzle, nor was she a bystander to its use. (See Elmore v. American Motors Corp. (1969)
Souza counters that the snowmaking equipment was defectively designed given the hydrant's location in the middle of the run and the nozzle's uphill direction. It is undisputed, though, that the hydrant was plainly visible, that there was sufficient room on either side of the snowmaking equipment for skiers to pass by, and that Souza simply caught a ski edge, lost her balance, veered toward the equipment and collided with it. As Squaw Valley persuasively *397 argues, "[t]his scenario does not describe a product defect it describes an inherent risk of skiing."
We conclude summary judgment was properly granted on this cause of action.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE and CANTIL-SAKAUYE, JJ.