Lead Opinion
Opinion
In рersonal injury cases arising from sporting activities, a defendant cannot be charged with a duty to protect the plaintiff from risks inherent in the sport. Those risks are borne by the plaintiff as a matter of law, under the “primary assumption of risk” doctrine. However, the defendant can be held liable for breaching the duty not to increase the risks encountered by the plaintiff beyond the level inherent in the sport. This is an aspect of “secondary assumption of risk,” which operates as part of the comparative fault scheme. The
Here, a jury was asked to determine whether a ski resort “was negligent in the design, construction, testing, or supervision of the snow board jump on which plaintiff was injured.” The trial court refused to instruct the jury on assumption of risk, instead giving ordinary negligence and contributory negligence instructions. This was reversible error. Although assumption of risk has been “merged into the comparative fault scheme” in its secondary aspect (Knight, supra,
We also hold that ski resort employees who are not covered by workers’ compensation for injuries sustained while participating in recreational activity on their own initiative may not claim the protection of Labor Code section 2801. That statute bars employers from raising assumption of risk as a defense in negligence actions by employees injured in the course of their employment.
BACKGROUND
Charlene Vine suffered a broken back, resulting in paraplegia, when she fell while attempting a snowboard jump at an employee party hosted by her employer, Bear Vallеy Ski Company (Bear Valley) after the end of the public ski season. A Bear Valley employee had reshaped the jump, using a snow cat, for use by guests at the party. Vine sued Bear Valley, contending the jump was a dangerous condition that increased the risks to snowboarders beyond those inherent in the sport. A jury awarded her $3,727,000 in special damages and $713,000 in noneconomic damages. Vine moved for a new trial on noneconomic damages. The trial court granted the motion, but ruled the judgment would be affirmed if Bear Valley accepted an additur of nearly $5.3 million in noneconomic damages. Bear Valley rejected the additur and appealed from both the judgment and the order granting a new trial. We have consolidated the two appeals.
We discuss further procedural and factual details below, in connection with the issues raised by Bear Valley. Bear Valley contends the trial court erred by: (1) ruling in limine that workers’ compensation was not Vine’s exclusive remedy; (2) denying Bear Valley’s motion for summary judgment based on a release executed by Vine; (3) denying summary judgment based on primary assumption of risk; (4) failing to instruct the jury on primary assumption of risk, secondary assumption of risk, or “the obvious hazard doctrine;” and (5) granting a new trial on noneconomic damages. Because the instructional error requires reversal, we need not address the propriety of the new trial ruling.
DISCUSSION
1. The Workers’ Compensation Bar
Bear Valley first raised the workers’ compensation issue in a motion for summary judgment. The court denied the motion, finding triable issues of fact as to whether Vine was in the course and scope of her employment at the time of the injury, and whether she was exempted from the worker’s compensation scheme by Labor Code section 3352, subdivision
The parties revisited the issue in a jointly filed pretrial motion, asking the trial court to determine whether Vine’s remedy was limited to workers’ compensation based on the following stipulated facts:
“[Plaintiff’s injury was sustained in the course and scope of her employment.
“Plaintiff was defendant’s employee.
“Plaintiff was injured during a corporate function.
“The corporate function was an employee party.
“Plaintiff’s accident resulted from her engaging in a recreational activity (snowboard jumping).
“The recreational activity was part of the party’s entertainment.
“Plaintiff was providing working assistance at the party before she went snowboarding.
“Defendant re-shaped portions of the jump on which plaintiff was injured specifically for the party.
“The ski area was not open to the general public on the date plaintiff was injured.
“Eric Bottomley is the Vice President of Operations for Bear Valley Ski Company.
“If Charlene Vine and Eric Bottomley were called to testify, they would testify as per the attached.”
“Eric Bottomley, if called to testify, would also state that he had spoken with Charlene Vine in advance of the employee party about needing her help during the event.”
The parties attached excerpts from the depositions of Bottomley and Vine. Bottomley testified that employees were not required to attend the party. Vine had agreed to help him as a volunteer with bartending and a raffle. After working for a while she was “just hounding and hounding” Bottomley to let her go snowboarding, and he finally agreed.
Vine testified it was the season-ending party for Bear Valley employees and their families. The facility was closed to the general public. She had not planned on snowboarding that day, but a contest had begun and “a couple of people had come uр to me and told me there w[ere] no girls entered and they wanted me to go snowboarding.” She changed into her ski clothes and took a couple of jumps off a small jump on the edge of a sun deck. People were cheering and someone was announcing over a microphone. Vine did not remember the circumstances under which she decided to go to a larger jump on a nearby hill, where her injury occurred. “I just remember there was a bunch of people headed toward the jump, and the next thing I remember is standing next to the jump . . . .”
Vine contended she was exempted from the workers’ compensation scheme by Labor Code section 3352, subdivision (f) because she was employed by Bear Valley to work at its ski area, and was snowboarding on her own initiative during a break from her bartending duties when she was injured. Bear Valley noted the workers’ compensation statutes are liberally construed in favor of coverage. (Lab. Code, § 3202.) It argued that once Vine stipulated she was in the course and scope of her employment, she could not claim she was “not performing any prescribed duties” and “participating in recreational activities on . . . her own initiative” within
In response, Vine observed Labor Code section 3352, subdivision (f) was enacted in response to a Colorado Supreme Court decision holding that a ski resort bartender was in the course of his employment when he was injured while skiing during his time off, using his employee ski pass. (Dorsch v. Industrial Commission (1974)
The court agreed with Vine, and ruled that Labor Code section 3352, subdivision (f) exempted her from workers’ compensation coverage. Bear Valley challenges that finding. It contends application of the statutory exemption to the stipulated facts is a question of statutory interpretation subject to our independent review.
At oral argument, Bear Valley suggested that once a ski resort employee arrives at an employer-sponsored party (assuming the party is within the course of the employment), all injuries suffered during recreational activities provided by the employer are covered by workers’ compensation as a matter of law—that is, the activity cannot be considered to have been undertaken on the employee’s “own initiative” under Labor Code section 3352, subdivision (f).
We disagree. Participation in the resort’s recreational activities is a common feature of employment at ski resorts. The mere fact that the activity occurs at an employee-only party is not enough to take it out of the scope of the exemption provided by the Legislature specifically for such recreational activity. Determining whether an employee participated on her “own initiative” requires examination of the particular circumstances, including the extent to which the employer sponsored, encouraged, supervised, or otherwise participated in the activity.
Vine correctly argues that the trial court’s finding on this issue is subject to the substantial evidence standard of review. The application of Labor Code section 3352, subdivision (f) to the stipulated facts is a mixed question of law and fact, which is predominantly factual and “requires application of experience with human affairs;” therefore, it is governed by the substantial evidence test. (Crocker National Bank v. City and County of San Francisco (1989)
Here, while Bear Valley reshaped the jump for use by its employees at the party, there was no evidence it overtly encouraged Vine to participate, or that its representatives took an active role in employees’ use of the jump. There was strong evidence that Vine herself persistently lobbied Bottomley to be released from her duties at the party to go snowboarding. Reasonable inferences from the stipulated facts support the trial court’s
2. Labor Code Section 2801
Before we address Bear Valley’s assumption of risk arguments, we consider Vine’s claim that Labor Code section 2801 precluded Bear Valley from raising assumption of risk as a defense. This argument was presented to the trial court in the parties’ joint pretrial motion, along with the worker’s compensation issue discussed above. The court rejected the claim, and properly so. Our review of this question of statutory interpretation is de novo. (Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003)
The relevant provisions of Labor Code section 2801 state: “In any action to recover damages for a personal injury sustained within this State by an employee while engaged in the line of his duty or the course of his employment as such ... in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer .... [f] It shall not be a defense that: [][] (a) The employee either expressly or impliedly assumed the risk of the hazard complained of.” Section 2801 appears in division 3 of the Labor Code, and applies only if an employee is not covered by the workers’ compensation scheme. (Lab. Code, § 2700; Devens v. Goldberg (1948)
Vine contends it is consistent to hold that she was both “in the course of [her] employment” at the time of her injury for purposes of Labor Code section 2801, and “not performing any prescribed duties, while participating in recreational activities on . . . her own initiative” for purposes of the exemption from workers’ compensation coverage provided by Labor Code section 3352, subdivision (f). She notes Labor Code section 3352, subdivision (f) is predicated on the notion that exempted employees are “in the course of employment” for workers’ compensation purposes (otherwise, there would be no need for an exemption). She also argues that while the exemption excluded her from the definition of “employee” in the workers’ compensation scheme, the Supreme Court has stated that the benefits of Labor Code section 2801 may be extended to a plaintiff who is not an “employee” for workers’ compensation purposes. (Edwards v. Hollywood Canteen (1946)
We are not persuaded. Just as “employee” status may operate differently under Labor Code section 2801 and the workers’ compensation scheme, so may the “course of employment” determination. Labor Code section 2801 refers to “the course of [] employment as such” (italics added), suggesting the Legislature contemplated a more restrictive application of “course of employment” than it has prescribed in the workers’ compensation statutes, which include off-duty recreational activities if they are a reasonable expectation of the employment. (Lab. Code, § 3600, subd. (a)(9); seе Kidwell v. Workers’ Comp. Appeals Bd. (1995)
Furthermore, Vine’s interpretation of the statute would lead to absurd results. Ski resorts would be barred from raising assumption of risk defenses, express or implied, in actions by employees injured while skiing on their own time side by side with members of the public who have signed releases expressly assuming the risk of the hazards associated with the sport, or who would otherwise be subject to the implied assumption of risk defenses. Vine, of course, happened to be injured at an employee-only party, but her reading of Labor Code section 2801 would apply equally to the more typical situation in which an off-duty employee is injured while skiing during the regular season. (See, e.g., Northstar at Tahoe v. Workers’ Comp. Appeals Bd., supra,
Nothing suggests the Legislature meant to treat ski resort employees enjoying the recreational opportunities afforded by their employment differently from the general public, which pays for the privilege of using a resort’s facilities and assumes the well-known risks of doing so.
3. The Release
Bear Valley also moved for summary judgment based on a release signed by Vine when she received her employee season pass. The operative terms of the release were as follows:
“I understand and am aware that skiing is a HAZARDOUS ACTIVITY involving INHERENT AND OTHER RISKS of injury to any and all parts of my body. I further understand that injuries in the sport are a COMMON AND ORDINARY OCCURRENCE, and I freely ACCEPT AND ASSUME ALL RISKS OF INJURY OR DEATH that might be associated with my participation in this sport.
“. . . To the fullest extent allowed by law, I agree to RELEASE FROM LIABILITY, and to INDEMNIFY AND HOLD HARMLESS Bear Valley Mountain Resort. . . from any and all liability on account of, or in any way resulting from, personal injuries, death or property damage, even if caused by NEGLIGENCE, in any way connected with my participation in this sport. I further AGREE NOT TO MAKE A CLAIM OR SUE FOR INJURIES OR DAMAGES in any way connected with my participation in this sport, even if caused by NEGLIGENCE.”
Bear Valley notes the court also excluded any reference to the release during trial. It does not challenge the propriety of that ruling, however, claiming only that the court erred by failing to grant summary judgment. Vine protests that Bear Valley is imprоperly seeking a more favorable standard of review by limiting its appellate claims in this fashion. (See Solis v. Kirkwood Resort Co. (2001)
In any event, the court’s denial of summary judgment was plainly correct. The release was ambiguous, at least as to whether the term “skiing” included snowboarding. Bear Valley presented no extrinsic evidence to resolve the ambiguity. It merely noted Vine’s deposition testimony that she understood she had executed a release in exchange for her season pass. This evidence shed no light on the meaning of the terms in the release. Bear Valley argued below, as it does in this court, that “skiing” includes snowboarding as a matter of law under Campbell v. Derylo (1999)
A third ground on which Bear Valley sought summary judgment was primary assumption of risk. Bear Valley contended it owed no duty to protect Vine against risks of injury inherent in the sport of snowboard jumping. Vine responded that she did not assume the risk of a defective jump. She presented a declaration from an accident reconstruction expert opining that the jump’s design was defective and subjected those using it to an extreme risk of serious injury. The court decided the primary assumption of risk doctrine did not apply, because “the sport of snowboarding does not inherently require jumps which are designed in such a way as to create an extreme risk of injury. (Branco v. Kearny Moto Park, Inc. (1995)
Bear Valley contends the court erred by denying summary judgment. It also claims the court improperly denied a proposed jury instruction on primary assumption of risk. Vine asserts the summary judgment ruling is not appealable. She argues the court properly refused to instruct the jury on primary assumption of risk, because the defense presents only legal issues for the court to determine.
Again, we deem it inappropriate to review the summary judgment ruling. There are circumstances in which a denial of summary judgment is reviewable after a trial on the merits. (Waller v. TJD, Inc., supra,
In any event, as with the question of the release (see pt. 3, ante), the court’s denial of summary judgment on primary assumption of risk was clearly correct. As the moving defendant, Bear Valley had the burden of showing that one or more elements of Vine’s cause of action could not be established. (Code Civ. Proc., § 437c, subd. (o)(2); Merrill v. Navegar (2001)
However, “[although defendants gеnerally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in [a] sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, supra,
Therefore, in order to establish it owed no duty to Vine because she had assumed the risk of injury, Bear Valley had to show either that its jump did not increase the inherent risks of snowboard jumping, or that whatever defects the jump may have had were included in those risks. It attempted
We discuss Bear Valley’s proposed jury instruction on primary assumption of risk below, in connection with secondary assumption of risk. Primary assumption of risk per se is not a proper subject for jury instruction. Our Supreme Court has made it clear that whether primary assumption of risk negates a defendant’s duty to protect the plaintiff from a particular risk is a legal determination to be made by the court, not the jury. (Knight, supra,
5. Secondary Assumption of Risk
In Kahn, our Supreme Court summarized Knight’s reconciliation of the doctrines of assumption of risk and comparative fault as follows: “We observed that the term ‘assumption of risk’ had been used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). ([Knight, supra, 3 Cal.4th] at pp. 303-304, 308.) In the latter class of cases,
Cases like this one, where the plaintiff contends the defendant breached the duty not to increase the risks inherent in a hazardous sporting activity, present both aspects of the assumption of risk doctrine. If the plaintiff fails to show any increase in the inherent risks, or if the trial court determines that the only risks encountered were inherent in the sport, the defendant prevails based on primary assumption of risk. If the jury, properly instructed on the scope of the defendant’s duty, determines the defendant did increase the inherent risk, it then considers the plaintiff’s claim based on secondary assumption of risk as an aspect of the plaintiff’s comparаtive fault. (American Golf Corp. v. Superior Court, supra,
The duty aspect of the secondary assumption of risk doctrine was actually addressed by Bear Valley’s proposed jury instmction on primary assumption of risk.
Vine claims the court’s instruction on contributory negligence with BAJI No. 3.50 sufficiently informed the jury regarding secondary assumption of risk.
“Although we agree with the general thesis of amicus curiae’s argument that persons generally should bear personal responsibility for their own actions, the suggestion that a duty approach to the doctrine of assumption of risk is inconsistent with this thesis rests on a mistaken premise. Past California cases have made it clear that the ‘comparative fault’ doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury Cwhether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an ‘equitable apportionment or allocation of loss.’ [Citations.]
“Accordingly, contrary to amicus curiae’s assumption, we believe that under California’s comparative fault doctrine, a jury in a ‘secondary assumption of risk’ case would be entitled to take into consideration
Therefore, it was not sufficient for the jury to be instmcted that Vine’s recovery should be diminished in proportion to her “negligence.” Thе court gave the standard negligence instructions from BAJI, quoted in full below,
The instructions were equally erroneous regarding the duty of care owed by Bear Valley. The court directed the jury to evaluate Bear Valley’s conduct by the standard of “ordinary or reasonable care,” under which a party has acted negligently if a “person of ordinary prudence . . . would have foreseen or anticipated that someone might have been injured” as a result of the party’s “action or inaction.” (BAJI Nos. 3.10 and 3.11; see fn. 8, ante.) The jury
The ski resort setting is such an obvious example of assumed risk that Knight used it as an example in discussing the scope of a property оwner’s duty:
“[A] property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citation.] In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.] In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.
“Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. [Citation.]” (Knight, supra, 3 Cal.4th at pp. 315-316.)
The duty to safely maintain towropes is not an apt comparison to Bear Valley’s role in shaping the mound of snow that Vine and others jumped over at the employee party. The jump, unlike towropes, was an essential component of the sporting activity itself. Knight pointed out that “the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant’s role in, or relationship to, the sport.” (Knight, supra,
This passage in Knight provides the appropriate standard of care by which Bear Valley’s liability should have
The dissent acknowledges it would have been “advisable” to give the primary assumption of risk instruction proposed by Bear Valley, but contends the error is harmless in light of the evidence and the arguments of counsel. As to Bear Valley’s proposed instruction on secondary assumption of risk, however, the dissent argues the evidence did not support the instruction because there was no showing Vine was aware of the increased risk posed by the negligent formation of the jump. We agree there was no such showing, but none was required.
A “knowing encounter with a risk of injury caused by defendant’s breach,” as posited in Bear Valley’s proposed instruction based on the language of Knight, does not entail knowledge of the breach and its causative effects, either in law or in logic. If Vine had encountered this jump while snowboarding by herself, decided to try it, and only later learned it was shaped by Bear Valley in a particularly dangerous way, Bear Valley would still have been entitled to raise an assumption of risk defense in a negligence action by Vine. It is the risk that must be appreciated by a plaintiff for the assumption of risk doctrine to come into play, not the defendant’s breach of duty.'
The dissent acknowledges Vine need not have been aware of Bear Valley’s breach,
We recognize that Knight includes in its secondary assumption of risk discussion “see” citations to authorities approving consideration of plaintiffs’ subjective awareness of risk. (Knight, supra, 3 Cal.4th at p. 314, citing Kirk v. Washington State University (1987)
Here, for instance, had the jury decided that Bear Valley increased the inherent risks of the jump by 5 percent, no fault would be allocated to Vine for her assumption of risk unless Bear Valley could prove she perceived the enhanced fraction of the risk (or part of it, at least, according to the dissent). We do not believe this is what Knight intended; in such a case, assumption of risk is an available defense if the plaintiff participated in the sport with knowledge of its inherent risks. Obviously, if a plaintiff is aware of an increased risk created by the defendant, that awareness can be included in the jury’s evaluation of comparative fault. But Knight does not predicate secondary assumption of the risk on such specific subjective considerations.
Knight contemplated a “flexible, commonsense” consideration of comparative fault by the jury, in which “both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport” are weighed by the jury to reach an equitable apportionment of fault. (Knight, supra,
It is probable the instructional error prejudicially affected the verdict. The “natural and probable effect of the error” on Bear Valley’s “ability to place [its] full case before the jury” was substantial—Bear Valley was effectively deprived of the opportunity to present an assumption of risk defense to the jury. (Soule v. General Motors Corp., supra,
The evidence certainly supported a finding that Vine assumed a substantial risk. There was no dispute at trial that snowboarding is a very risky sport. Whether the design of the jump magnified the risks was a disputed issue. Bear Valley’s expert on “terrain parks,” who viewed photographs of the jump at issue and the videotape of employees using the jump on the day Vine was injured, testified that the jump was typical of those used around the world, and could not have been designed to exclude the possibility that a jumper would
We agree with the dissent that the prejudice to Bear Valley on the issue of its duty was mitigated by the way the case was presented. Vine’s counsel did not suggest Bear Valley could be held liable merely because an injury to snowboard jumpers was foreseeable, although the instructions would have permitted such a finding. The evidence and argument was properly aimed at whether the jump was negligently constructed so as to pose risks beyond those normally encountered by snowboarders.
On the other hand, the jury was not informed that Bear Valley had no duty to take steps to reduce the risks inherent in snowboard jumping, or to change the essential nature of the sport. Bear Valley was thus deprived of a powerful avenue of argument. However, we need not decide whether this error alone was prejudicial. Considering it together with the court’s failure to instruct the jury that Vine’s recovery could be diminished by her assumption of risk, we believe it is reasonably probable the jury was actually misled in its apportionment of fault. (Soule v. General Motors Corp., supra,
Vine, and the dissent, contend the jury’s allocation of 54.4 percent of the fault to Vine demonstrated that the jury held her accountable for her decision to participate in a risky sport. A close examination of the closing arguments, and the evidence on which they were based, convinces us otherwise. Vine’s counsel proposed and disputed a number of grounds on which the jury might be tempted to consider Vine contributorily negligent: (1) “simply taking the jump;” (2) taking the jump despite risks she should have understood; (3) taking a jump bigger than any she had tried before; (4) failing to reach the jump’s landing area; and (5) losing her balance when she was airborne. Counsel argued against holding Vine responsible for taking a risky jump by noting that she was a very experienced snowboard jumper, and that many others were taking this particular jump, which was supposed to have been designed for anyone to use safely regardless of its size. He argued against faulting Vine for her technique by contending the jump’s design was to blame for her loss of control.
Bear Valley’s counsel, after referring the jury to the test for negligence provided in BAJI No. 3.11 (whether an ordinarily prudent person in the same situation would have anticipated injury), emphasized that snowboard jumping is a risky activity and Vine deliberately chose to take this jump. He analyzed Vine’s “jumping technique” at length, noting her failure to build enough speed on her approach, her “stiff legged” and backward-leaning posture instead of keeping a low center of gravity while balanced over her board, and her flailing arms as she lost control in the air, causing her to land on her back instead of her feet. Counsel pointed out that none of the other jumpers the jury saw on the videotape had lost control in this manner.
The evidence of Vine’s faulty performance of the jump was undisputed and overwhelming. It came from witnesses for both parties. While the evidence that snowboard jumping is risky was also undisputed, the attempt by Bear Valley’s counsel to direct the jury’s attention to this factor found no support in the instructions.
Even if the jury were inclined to consider the factor of risk in its allocation of fault, the instructions given by the court provided Vine’s counsel with a potent rejoinder. In his rebuttal, he characterized Bear Valley’s argument as “there are some risks here in snowboarding, and because there are risks, we don’t have to be careful.” In his closing comments to the jury, counsel dismissed risk as an irrelevant consideration: “Hey, risk, risk in sport. That’s not the way it goes. That’s not what the jury instructions will tell you. The jury instructions will tell you that if you' could foresee somebody being injured by your screwup, and you could avoid the screwup, that the failure to do so is negligence.”
The instructions, including the court’s admonition to rely on the law as it was stated in the instructions, fully supported counsel’s legally erroneous argument. The argument was improper because it was clear, under Knight, that risk in sport is indeed “the way it goes” in actions to recover for injuries sustained while participating in hazardous recreation. The instructions prevented the jury from considering assumption of risk in an obviously appropriate context. Snowboarding is a classic example of a sport that requires participants to assume considerable risks. It is fundamentally unfair for a snowboarding injury case to go to a jury without any instruction on assumption of risk. We cannot say the court’s instructional error had no effect on the verdict.
DISPOSITION
The judgment is reversed. Bear Valley shall recover its costs on appeal.
Corrigan, Acting P. J., concurred.
Notes
In this case, it appears the release signed by Vine was on the same form signed by Bear Valley’s paying customers. It begins, “In consideration for the purchase of a Bear Valley Mountain Resort season pass . . . .”
Should the issue arise again in litigation following remand, we note for the benefit of the parties and the trial court that an easy answer is not necessarily provided by the general rule that ambiguities in a contract are construed against the party who drafted the terms. That maxim applies only when other canons of construction, including consideration of extrinsic evidence of the parties’ intent, fail to resolve the ambiguity. (Oceanside 84, Ltd. v. Fidelity Federal Bank (1997)
We note also that if the express assumption of risk in the release applies, the implied assumption of risk principles discussed in Knight would not come into play. (Allan v. Snow Summit, Inc. (1996)
Bear Valley refers us to Estate of Harshman v. Jackson Hole Mountain Resort (D.Wyo. 2002)
Whether the defendant has increased the risks inherent in a sport is a question reserved for the court insofar as it involves the legal determination of the scope of the defendant’s duty. The court may consider expert opinion regarding the risks customarily considered “inherent,” though expert opinion is not controlling on the ultimate legal question of duty. (Kahn, supra,
This proposed instruction stated:
“The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.
“The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury.
“A failure to fulfill such duty is negligence.”
Bear Valley also submitted an alternative version of this instruction, including this statement:
“A finding that defendant’s conduct may have increased the severity of the injury suffered is not a finding that defendant increased the risk of injury beyond that inherent in recreational snowboard jumping.” The parties raise no issue concerning the propriety of the additional statement.
This proposed instruction stated:
“If you find that defendant breached its duty of care to plaintiff, plaintiff’s knowing encounter with a risk of injury caused by defendant’s breach, if any, is to be considered by you in determining the plaintiff’s comparative negligence or fault. A person who is aware of a risk of harm created by a defendant’s breach of duty but fails to avert the harm is comparatively negligent for the injury.
“You should consider all of the surrounding circumstances established by the evidence, including, but not limited to, the plaintiff’s maturity, intelligence, experience and capacity, along with all the other surrounding circumstances as shown by the evidence.”
Again, Bear Valley submitted an alternative instruction with additional material, none of which is material to the issues before us.
This instruction informed the jury:
“Contributory negligence is negligence on the part of a plaintiff which, combining with the negligence of a defendant, contributes as a cause in bringing about the injury.
“Contributory negligence, if any, on the part of the plaintiff does not bar a recovery by the plaintiff against the defendant but the total amount of damages to which the plaintiff would otherwise be entitled must be reduced in proportion to the amount of negligence attributable to the plaintiff.”
“Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under circumstances similar to those shown by the evidence.
“It is the failure to use ordinary or reasonable care.
“Ordinary or reasonable care is that care which persons of ordinary pmdence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.” (BAJI No. 3.10.)
“One test that is helpful in determining whether a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that someone might have been injured by or as a result of his action or inaction. If the answer to that question is ‘yes,’ and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.” (BAJI No. 3.11.)
“The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reasonably prudent person under circumstances similar to those shown by the evidence.” (BAJI No. 3.12.)
“Evidence as to whether a person conformed or did not conform to a custom that had grown up in a given locality or business is relevant and ought to be considered, but is not necessarily controlling on the issue whether that person was negligent. That issue must be determined by the standard of care that I have stated to you.” (BAJI No. 3.16.)
Numerous cases arising from ski resort injuries have considered various aspects of the assumption of risk doctrine. For post-Knight examples beyond those cited in this opinion, see 6 Witkin, Summary of Cal. Law (9th ed., 2003 supp.) Torts, § 1090C, pp. 339-343; see also Annotation, Ski Resort’s Liability for Skier’s Injuries Resulting From Condition of Ski Run or Slope (2004) 55 A.L.R.4Ü1 632 section 4.
The duties of proprietors of sporting venues are distinct from those of coparticipants or instructors, who are not held to have increased the inherent risks of a sport unless they intentionally injure another or engage in reckless conduct outside the range of the sport’s ordinary activities. (Knight, supra,
Bear Valley also challenges the court’s failure to give a proposed instruction on what Bear Valley terms the “obvious hazard doctrine.” The court properly rejected this instruction, which told the jury Bear Valley had no duty to warn Vine of an obvious hazard. While Vine did include a duty to warn allegation in her complaint, she did not argue that theory of liability to the jury. Furthermore, after Rowland v. Christian (1968)
The fact that Bear Valley was the provider of a venue for sporting activities distinguishes this case from Calhoon v. Lewis (2000)
The dissent accuses Bear Valley of faulting the court for not giving an instruction Bear Valley never proposed. It is true Bear Valley’s proposed instructions did not include a salient qualification—that comparative fault may be assigned for engaging in a risky sport even if the plaintiff did not act unreasonably. While Bear Valley relies on this point for the first time in its appellate brief, it also squarely challenges the court’s failure'to give its proposed instructions. Those instructions correctly reflected principles established in Knight, and adopted Knight’s terminology. While the proposed instructions could have been better tailored to fit the circumstances of this case (we offer an example below), it cannot seriously be disputed that Bear Valley properly preserved its claim of instructional error.
A fuller explanation of the assumption of risk doctrine as it applied in this case might read as follows:
“The defendant had no duty to protect the plaintiff from the risks of injury inherent in the sport of recreational snowboard jumping. An inherent risk is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.
“The defendant did have a duty not to increase the risks of snowboard jumping beyond the level of risk inherent in the sport. If the defendant breached that duty, it was negligent. However, in determining the parties’ comparative fault, you should consider the plaintiff’s voluntary decision to encounter the risks of snowboard jumping. Whether the plaintiff acted reasonably or not in choosing to take those risks, you may reduce her recovery to account for her assumption of risk by whatever amount you find proper in light of all the evidence.”
Concurrence Opinion
I agree with the analysis of the majority as to all issues except the conclusion that the judgment should be reversed because of the trial court’s failure to give an unrequested instruction as to secondary assumptiоn of the risk. Before turning to that issue, however, I wish to expand somewhat on the reasons for which I concur in the conclusion that plaintiff Charlene Vine’s claim does not come within the scope of the Workers’ Compensation Act (the Act), Labor Code section 3200 et. seq.
Plaintiff’s injury is not covered by workers’ compensation.
“The right to workers’ compensation benefits is wholly statutory. [Citations.] ‘This statutory right is exclusive of all other statutory and common law remedies, and substitutes a new system of rights and obligations for the common law rules governing liability of employers for injuries to their employees.’ ” (Northstar at Tahoe v. Workers’ Comp. Appeals Bd. (1996)
In 1974, the Colorado Supreme Court held that under similar statutory provisions an employee of a ski resort was acting within the course of his employment, and thus was entitled to compensation benefits, even though he was injured while skiing on his day off. (Dorsch v. Industrial Commission (1974)
In order to avoid such an outcome under the California statute, the Legislature amended section 3352 by adding subdivision (f), which excludes from the definition of an employee subject to the provisions of the workers’ compensation law: “Any person employed by a ski lift operator to work at a snow ski area who is relieved of and not performing any prescribed duties, while participating in recreational activities on his or her own initiative.” (§ 3352, subd. (f); Northstar at Tahoe, supra,
As the majority indicates, the parties here submitted a joint pretrial motion, based on the undisputed facts recited in the majority opinion, requesting the trial court to determine whether plaintiff’s injury was covered by the workers’ compensation statute. Contrary to Bear Valley’s assertion, the stipulation that Vine was injured in the course of her employment does not necessarily establish workers’ compensation coverage. Section 3352 contains 14 exclusions from the broad definition of an employee in section 3351 that apply throughout the Act. (§ 3350.) Under
While I agree with the majority that there is substantial evidence to support the trial court’s determination that Vine was snowboarding on her own initiative, I believe that this conclusion finds further support in cases addressing the applicability of section 3352, subdivision (f) and section 3600, subdivision (a)(9). In Northstar at Tahoe, supra, 42 Cal.App.4th at pages 1483-1485, the court found that a ski area employee injured while skiing on her day off was excluded as a covered employee by subdivision (f). As the employee was not required to be at the ski resort at all at the time of the injury, there was no dispute that she had been relieved of all prеscribed duties and was skiing on her own initiative. (Northstar at Tahoe, at p. 1485.) On the other hand, in Lane v. Homewood Mountain Resort (Jan. 25, 2002, Cal. Workers’ Comp. App. Bd. No. SAC 301121), the Workers’ Compensation Appeals Board found that section 3352, subdivision (f), did not preclude recovery of workers’ compensation benefits where the employer had encouraged an employee to participate in a company-sponsored event in which she was injured. The plaintiff was injured while participating in a furniture race in which staff members from each department entered different vehicles made from furniture. The race was put on by the ski area, and the marketing department encouraged each department to enter a sled. The sleds were checked for safety by the employer, and the employer judged the competition. The race took place after the slopes had closed for the day, but the bar and restaurant were still open. The appeals board found that while prior to the start of the race plaintiff had finished work for thd day, she was not engaging in the recreational activity on “her own initiative” because of her employer’s encouragement and participation in the event.
Non-ski-related cases turning on the meaning of section 3600, subdivision (a)(9), provide some additional guidance. Although section 3352 was not at issue in these cases, coverage for the injuries sustained during off-duty recreational activities turned in these cases on whether the activities were “expressly or impliedly required by . . . the employment” under section 3600, subdivision (a)(9). In Smith v. Workers’ Comp. Appeals Bd. (1987)
Here, it is undisputed that Vine was asked by Eric Bottomley, the vice-president of operations for Bear Valley, to attend the employee party and to help out at the bar during the party. The parties stipulated that Vine was providing “working assistance” before she was injured. Thus, her attendance at the party could well be considered an implied requirement of her employment—she did not attend the party entirely on her own initiative. However, there was no requirement that she go snowboarding when she finished at the bar. Bear Valley argues that snowboarding was the entertainment for the party, just as windsurfing was the entertainment for the picnic in Smith, supra,
The jury instructions were not prejudicially erroneous.
The issue that was presented to the jury in this case was whether Vine was injured because of the “open and obvious” risks of snowboard jumping, or because Bear Valley negligently created a jump that unreasonably increased the risks over and above those that were apparent to snowboarders and inherent in the sport. The jury was instructed that “plaintiff seeks to recover damages based upon a claim of negligence,” and the special verdict asked the
Vine presented three expert witnesses who testified that the jump was unreasonably unsafe and substantially increased the risk of injury inherent in the sport and apparent to the average snowboarder. One expert explained that the jump was designed in a manner that resulted in excessive landing force, in violation of snowboard jump standards issued by the United States Ski and Snowboard Association (USSSA) and similar Canadian standards. Another concluded, “[T]he jump that [Vine] took was not a safe jump, that it was unsafe, and it subjected her to a equivalent impact height of about 12 feet. . . the same as if she had fallen directly down onto a flat surface from a height of 12 feet.” The jump was designed with a concavity that increased the velocity of the snowboarder and the force upon impact; if the jump had been rounded rather than concave, Vine would have sustained an equivalent impact height of only one and one-half feet from her jump. Under USSSA standards, the maximum equivalent impact height is five feet, and under Canadian standards the equivalent is two and a half feet. In his closing argument, Vine’s attorney argued, “This was a bad jump. Instead of taking the usual day and a half to build a jump, Mr. Murphy built the jump in about somewhere around an hour, hour and a half, something like that, [f] A jump that’s properly designed is supposed to be that you can land anywhere on it without sustaining unnecessarily high equivalent impact forces, unnecessarily high forces upon landing.” He detailed how his expert witnesses had testified the jump did not comply with industry standards and why these deviations made the jump unsafe. Based on this evidence he argued that the jury should find that the jump was negligently designed. He also argued that Bear Valley was negligent in testing the jump because Murphy failed to test it as is required under industry standards, and failed to provide supervision because the ski patrol did not inspect the jump and was not even on the hill at the time of the injury. Bear Valley’s evidence was to the contrary. Its witnesses testified that the jump on which Vine was injured was typical of snowboard jumps and could not have been designed to eliminаte the risk of injury.
Throughout the course of proceedings in the trial court, defense counsel repeatedly urged the court to instruct the jury on primary assumption of the risk.
The instructions that Bear Valley proffered on the subject of primary assumption of the risk stated the correct rule of law. It is unquestionably correct that a defendant has no duty to eliminate or reduce “inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted.” It is also unquestionably true that nothing in the court’s instructions, the arguments of counsel, or anything else that was said during the course of trial suggested that there is such a duty. While it would have been advisable for the court to have explicitly told the jury that defendant’s only obligation was “not to increase the risks to a snowboarder over and above those inherent in the sport,” this premise was made plain in the opening statements of counsel,
•» : <r was liable only if it was negligent and it was asked to determine whether Bear Valley was “negligent in the design, construction, testing or supervision” of the jump on which Vine was injured. Vine’s contention throughout was that the jump was negligently designed and constructed because it gave rise to excessive landing forces that were not apparent and not normally encountered in snowboarding. Based on the conflicting evidence, that is what the jury found. There is no basis to suppose that the verdict would have been different if the instructions had restated what was implicit throughout the trial.
The second reason Bear Valley contends that the instructions were erroneous is that the trial court refused to instruct on the obvious hazard doctrine. In view of the theory on which Vine relied at trial, the majority correctly rejects this contention. (Maj. opn., ante, at p. 598, fh. 11; see also, e.g., Felmlee v. Falcon Cable TV (1995)
Bear Valley’s final attack on the instructions is the trial court’s failure to give an instruction on secondary assumption of risk. According to Knight, supra,
Opposing counsel were in essential agreement as to what needed to be shown to establish secondary assumption of the risk. As Vine’s attorney presented the matter to the court, to establish secondary assumption of the risk, Bear Valley “would have to prove it is actually a type of comparative negligence actually. In other words, the plaintiff was negligent in recognizing a risk and [accepted] bringing herself to that risk. [][]... [|] Secondary assumption of risk, I think defendants could still show .... [i]f the defendants say this jump does, in fact, increase the risks inherent in the sport, however, plaintiff you knew that. You saw the way this jump was designed. You knew that there was a risk of getting injured
Bear Valley did offer two proposed instructions on the subject of secondary assumption of risk.
In concluding that Knight requires a “plaintiff’s encounter with the risk [to] be ‘knowing’ only in the general sense that the plaintiff understood the nature of the risk involved” (maj. opn., ante, at p. 599), the majority opinion correctly states that “[i]t is the risk that must be appreciated by a plaintiff for the assumption of risk doctrine to come into play, not the defendant’s breach of duty” (maj. opn., ante, at p. 598). But this statement begs the question. The question is, the risk of what? Knight repeatedly makes clear that “in the assumption of risk context, it would be improper to impose all resрonsibility on a plaintiff who is aware of a risk of harm created by the defendant’s breach of duty . . . .” (Knight, 3 Cal.4th at pp. 310-311, italics deleted and added.) Again, “In cases involving ‘secondary assumption of risk’—where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty—the doctrine is merged into the comparative fault scheme . . . .” (Id. at p. 315, italics added.) Bear Valley’s proposed instruction would have been proper if there were any evidence that Vine had been aware that the jump in question produced greater landing forces than usual and nonetheless decided to take the jump. As the majority opinion acknowledges (maj. opn., ante, at p. 598), there was no such evidence. In order for such an instruction to have been applicable, there was no need for evidence that Vine was aware there had been negligence in the design or construction of the jump or for evidence that she was aware of the precise degree to which the risks had been increased by the defendant’s negligence. But she did need to be aware that the conditions she was voluntarily encountering differed from those ordinarily encountered and inherent in the particular sporting activity. She needed to be aware of more than the normal risks of snowboard jumping or, as the majority opinion puts it, of “the risk of injuring herself in a fall on the snow.” (Maj. opn., ante, at p. 599.)
To use the hypothetical employed by the majority, we may assume Bear Valley owed a duty to all snowboarders not to conceal a spike in the landing area of the jump. If a particular snowboarder knows there is a concealed spike in the landing area and nonetheless takes the jump, the snowboarder may assume some responsibility for being injured on the spike by virtue of secondary assumption of the risk, incorрorated into the element of comparative negligence. (See, e.g., Knight, supra, 3 Cal.4th at pp. 314—315, citing Kirk v. Washington State University (1987)
Bear Valley contends that the judgment should be reversed because the trial court failed to give an instruction that Bear Valley never proposed. Under Knight, a plaintiff may be charged with comparative responsibility for engaging in a risky activity
Moreover, the trial judge’s failure to have made this unrequested clarification resulted in no prejudice. The jury was instructed on the subject of comparative negligence and attributed 54.4 percent of the responsibility for Vine’s injuries to Vine herself. There was no basis on which the jury could have done so other than by finding Vine responsible for having accepted the risks inherent in snowboard jumping. One of Vine’s own experts testified that Vine was “not experienced enough” to have taken the “very big jump” on which she was injured. Vine herself acknowledged that she had considered whether to take a jump bigger than any she had ever done before. The jury must have concluded that Vine bore the major portion of responsibility for her accident by having decided to take that risk. By attributing 54.4 percent of the responsibility for her injury to Vine, the jury necessarily held her responsible for the consequences of taking a risky jump which she failed to execute properly.
The majority suggests that the jury’s attribution of comparative negligence to Vine was “easily correlated with Vine’s failure, despite her considerable snowboarding experience, to properly execute the fundamental jumping techniques” (maj.
Bear Valley contended that the manner in which Vine took the jump went to the issue of causation. It argued that Vine’s injuries were not caused by any negligence in the design or construction of the jump but by the poor form with which Vine took the jump. The jury undoubtedly considered Vine’s faulty technique in determining her proportionate responsibility in causing her injury, and it did so despite the fact there was never any suggestion that Vine acted unreasonably or that her poor form constituted negligence. Since the jury could have considered Vine’s contribution to the causation of her injury only after determining that she was for some reason at fault, the jury must have placed responsibility on her for having assumed the risk of taking the snowboard jump.
The majority opinion posits the possibility that the jury attributed fault to Vine based on her improper snowboarding technique. However, as just indicated, the defense never argued that the jury should do so. The suggestion that the jury nonetheless may have considered Vine’s poor form to constitute negligence not only is entirely speculative, but disregards the fact that Bear Valley did argue that Vine’s poor technique showed simply why Vine’s injury was not caused by the configuration of the jump. And, as the majority opinion acknowledges (maj. opn., ante, at p. 601), in his closing argument Vine’s attorney did attempt to convince the jury that it should not attribute negligence to Vine because she attempted a jump that she should have known was beyond her ability. Vine’s attorney did not argue that this was an inappropriate factor for the jury to consider or suggest that if Vine was injured as the result of taking a jump that was beyond her ability she bore no responsibility for doing so. If under the trial court’s instructions the jury found that Vine was negligent in attempting the jump with its inherent risk, as it apparently did, there would have been no reason for it to have increased the apportionment of fault to her if it had been told that she was responsible for taking that same risk even if she were not negligent in doing so.
Thus, there is absolutely no reason to believe that the result in this case would have been different if the jury had been told that Vine could be contributorily responsible for her injury even if she acted reasonably. The verdict plainly reflects
A petition for a rehearing was denied June 3, 2004, and respondent’s petition for review by the Supreme Court was denied August 25, 2004. Kennard, J., Werdegar, J., and Chin, J., were of the opinion that the petition should be granted.
All statutory references are to the Labor Code unless otherwise indicated.
Bear Valley proffered an instruction entitled “No Duty to Protect Against Inherent Risks of a Sport (Primary Assumption of Risk),” which read as follows: “The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport, [f] The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury. [][] A failure to fulfill such duty is negligence.”
In his opening statement, Vine’s attorney told the jury, “The question that you are going to be asked to decide is: Once Bear Valley changed that jump, did they take a jump that was safe and turn it into one that was dangerous . . . .” In his opening statement, Bear Valley’s attorney told the jury the evidence would show that “[t]he configuration of this jump and the risks of injury that it presented were open and obvious to all, including Ms. Vine, and that any snow configuration that you craft out there on the mountain . . . you can’t eliminate the risk of injury from somebody who loses their body control, and in particular when they land upside down on their back and their shoulders and their neck. You can’t eliminate that.”
For example, Bear Valley’s attorney argued in closing that Vine had “not satisfied the preponderance of the evidence that it’s more likely than not that the jump here created an excessive risk of injury as opposed to what we have to understand in this same situation is a risk of injury from anybody who falls on a jump. [][]... [j[] So we contend that the jump by its design and by the evidence of its actual use and testimony we’ve heard presented only the usual or expected risks associated with the aerial jumping that was taking place. That’s what we contend.” In rebuttal, Vine’s attorney argued, “Charlene Vine’s equivalent impact of 12 feet broke her back.... [A] properly designed jump would have subjected Charlene Vine to impact forces less than 3.7 feet at the point of which she landed, and if this jump was properly designed, regardless of whether she landed on her feet or on her back, she would not have been injured. HD • - - ISO This jump was a bad jump. There is no question about that.”
The jury was instructed that negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do “under circumstances similar to those shown by the evidence,” and that, although not necessarily controlling, evidence “as to whether a person conformed or did not conform to a custom that had grown up in a given locality or business is relevant and ought to be considered” in determining whether the person was negligent. At no point in the trial did anyone ever imply that Bear Valley was liable simply because it is foreseeable that injury may result from snowboard jumping. Indeed, the final argument of Vine’s counsel, which the majority believes to have been “legally erroneous” (maj. opn., ante, at p. 603), emphasized that Bear Valley was liable if it was foreseeable that somebody would be injured by a “screwup,” (italics added) not by the normal risks of snowboarding. By the end of the trial, there could not have been the slightest misunderstanding on anybody’s part that by a “screwup,” counsel meant constructing a jump that produced far greater landing forces than normally encountered and reasonably anticipated by most snowboarders.
After submitting a lengthier proposed instruction entitled “Comparative Negligence/Secondary Assumption of Risk,” which included the statement that “A person who is aware of a risk of harm created by a defendant’s breach of duty but fails to avert the harm is comparatively negligent for the injury,” Bear Valley submitted an alternative instruction labeled “Comparative Negligence.” That proposed instruction read, “If you find that defendant breached its duty of care to plaintiff, plaintiff’s knowing encounter with a risk of injury caused by defendant’s breach, if any, is to be considered by you in determining the plaintiff’s comparative negligence or fault. A person who is aware of a risk of harm created by a defendant’s breach of duty but fails to avert the harm is comparatively negligent for the injury, [f] You should consider all of the surrounding circumstances established by the evidence, including, but not limited to, the plaintiff’s maturity, intelligence, experience and capacity, along with all the other surrounding circumstances as shown by the evidence.”
Indeed, when asked, “When you looked at this jump, you didn’t see anything that was particularly hazardous about it; is that right?” Chris Gunnarson, one of the defendant’s experts, confirmed, “That’s correct.” Vine was aware of, and acknowledged, the normal risks of snowboard jumping, but there is no evidence that she was aware of the increased risks created by the negligent manner in which the jury found the jump in question to have been designed and constructed.
Indeed, defense counsel suggested that his initial proposed instruction might be modified by inserting “if any” after the phrase “plaintiff’s knowing encounter with a risk of injury caused by defendant’s breach,” but he never suggested that the instruction be revised to tell the jury it might consider plaintiff’s knowing encounter with the risks inherent in snowboarding regardless of negligence.