*1 A099536, Dist., First Div. Thrеe. May A099647. [Nos. 2004.] VINE, CHARLENE Plaintiff and Respondent, COMPANY, BEAR VALLEY SKI Defendant and Appellant.
Counsel Nelson, Bunshoft, Killion, Michael L. & Paul D. Paul J. Hancock Rothert Reitzell; J. for Defendant Koenig Tucker Ellis & West and Peter Appellant. Danko, Danko, G. L. and Niall & Michael S. Simms
O’Reily Gary Collins Plaintiff and Yamane for Respondent.
Opinion activities, a
PARRILLI, from arising cases In personal sporting J. from risks defendant cannot be with charged duty protect plaintiff law, risks are borne as matter of inherent in the Those sport. However, the can of risk” defendant under doctrine. “primary encountered held to increase breaching duty liable for is an aspect the level inherent This beyond sport. the plaintiff risk,” of the comparative as part “secondary assumption operates with is weighed together fault scheme. The risk acceptance plaintiff’s the parties’ trier fact determines the defendant’s breach (Knight v. Jewett (1992) 3 Cal.4th for the injury. responsibility proportionate East Side Kahn v. (Knight); P.2d 314-316 Cal.Rptr.2d 696] [11 990, 1003-1004 Dist. Union School Cal.Rptr.3d 31 Cal.4th High [4 Court (Kahn); Corp. Superior American 75 P.3d 30] Golf 683].) 36-37 *6 in Here, negligent a ski resort “was a was asked to determine whether jury construction, on of the board jump snow design, testing, supervision on to instruct the jury The trial court refused injured.” risk, and contributory ordinary negligence instead giving assumption Although assumption This was reversible error. instructions. negligence in secondary fault scheme” its the comparative has been into “merged risk 315), the doctrine still distinct 3 Cal.4th at (Knight, poses aspect relative must questions regarding These parties’ responsibilities. questions framed for a jury. properly We hold that also ski resort who are not covered workers’ employees for while in compensation injuries sustained recreational participating activity on their own initiative claim the of Labor Code section may protection 2801. That statute of risk a raising bars from employers assumption defense in actions negligence the course their emplоyees employment.
BACKGROUND back, Charlene suffered a broken resulting when she paraplegia, fell while a snowboard attempting an hosted her employee party (Bear Bear employer, Ski after the of the Valley Company Valley) end public cat, ski A Bear season. had Valley employee using snow reshaped jump, for by guests use at the Vine sued Bear party. Valley, contending was a dangerous condition risks to increased the snowboarders beyond $3,727,000 those inherent in the A awarded sport. damages special $713,000 in noneconomic moved new damages. Vine for a trial on motion, noneconomic damages. The trial court but ruled the granted would judgment be affirmed if Bear $5.3 Valley accepted nearly additur million in noneconomic Bear damages. Valley rejected the additur and from both the appealed and the order We judgment granting new trial. have consolidated two appeals. below,
We discuss further and factual details with procedural connection raised issues Bear Bear Valley. contends the trial court erred by: in limine ruling that workers’ was not Vine’s exclusive compensation remedy; denying motion based on summary judgment Vine; (3) release executed by denying summary judgment based on primary risk; (4) failing to instruct the primary assumption risk, risk, doctrine;” secondary or “the hazard and (5) obvious a new trial on granting noneconomic Because the damages. instructional error reversal, we need not address the trial requires new propriety ruling.
DISCUSSION 1. The Workers’ Bar Compensation first raised the workers’ issue in motion for compensation motion, The court denied the of fact
summary judgment. triable issues finding as to whether Vine was in course and of her at the scope employment time whether injury, she was from worker’s exempted *7 (f). Under subdivision Labor Code section scheme compensation work at a ski lift “[a]ny еmployed operator that provision, person duties, not any prescribed is relieved of and performing snow ski area who own initiative” on his her in recreational activities while participating purposes. not an for workers’ compensation “employee” motion, asking in a filed pretrial the issue jointly revisited parties limited to workers’ was remedy to determine whether Vine’s trial court facts: following stipulated based on the compensation of her employ- in the course scope was sustained “[Plaintiff’s ment. was employee.
“Plaintiff defendant’s function. during “Plaintiff was injured corporate was employee party. “The function corporate activity recreational her engaging accident resulted from “Plaintiff’s (snowboard jumping). entertainment. was part party’s
“The recreational activity she went at the before was assistance working party “Plaintiff providing snowboarding. on plaintiff re-shaped portions
“Defendant for the specifically party. date area to the general public
“The ski open injured. Ski for Bear Operations
“Eric Vice President Bottomley Company. would testify, they called to were Bottomley
“If Eric Charlene attached.” testify per he spoken state that had would also if called to testify,
“Eric Bottomley, needing help about of the employee party Vine in advance with Charlene event.” during *8 attached from the and excerpts Bottomley Vine. parties depositions testified that were to attend the Vine
Bottomley required employees party. had him a raffle. agreed volunteer with and After help bartending for a while and working “just she was to let hounding hounding” Bottomley her and he go snowboarding, finally agreed.
Vine testified it was the for Bear and season-ending party Valley employees their families. The was closed to the She had not facility general public. had “a planned day, but a cоntest and snowboarding begun couple come had to me and told me entered and people there no up girls they w[ere] wanted to go me She into her and snowboarding.” ski clothes took a changed off a small of a couple jumps edge sun deck. were People cheering someone was Vine over did not announcing microphone. remember the circumstances under which decided to a she to go larger jump hill, on a nearby where her “I injury occurred. remember there just was bunch of headed toward the and the next I people remember jump, thing next to the . . . .” standing
Vine contended she was exempted from the workers’ scheme compensation 3352, Labor Code section (f) subdivision because she was employed by area, Bear to work at ski Valley its and was on her snowboarding own initiative during break her bartending from duties when she injured. Bear noted the workers’ Valley statutes are compensation liberally construed Code, (Lab. favor of coverage. argued It that once Vine § stipulated she was in the course and scope her she could not claim she employment, was “not performing any duties” prescribed recreational “participating activities on . . . her own initiative” within of Labor meaning Code 3352, section (f). Bear subdivision Valley emphasized snowboarding was feature of the anticipated party, Vine was encouraged participate by her peers.
In
(f)
observed Labor Code
response,
section
subdivision
enacted in
to a Colorado
Court
response
holding
decision
that a ski
Supreme
resort bartender was in the course of
he
his
when
employment
off,
(Dorsch
while skiing during
his time
using his
ski
employee
pass.
Industrial Commission
460];
The court with and ruled that Labor section agreed Code (f) subdivision her from coverage. workers’ exempted compensation of the statutory exemp- It contends challenges finding. application subject is a question statutory interpretation tion to the facts stipulated our review. independent that once a ski resort employee oral argument, suggested
At is within at an (assuming party arrives employer-sponsored party *9 all recreational activities during of the suffered injuries course employment), matter are as a covered workers’ by by compensation provided employer is, on have been undertaken cannot be considered to activity law—that 3352, Labor Code section subdivi- “own initiative” under the employee’s (f). sion activities is in the resort’s recreational disagree.
We Participation the activity resorts. The mere fact that common feature of at ski employment it out of scope to take enough occurs at an is employee-only party for such recreational by specifically the exemption provided Legislature initia on “own whether an Determining employee participated activity. circumstances, including tive” examination requires particular or other which the sponsored, encouraged, supervised, extent employer activity. wise in the participated issue is finding the trial court’s argues
Vine correctly evidence standard of review. substantial subject application 3352, to the is a mixed (f) subdivision facts stipulated Labor Code section fact, factual and “requires of law and which is question predominantly therefore, affairs;” it is governed by with human of experience application San (Crocker City County Bank National evidence test. substantial 139, 278].) 881, 782 P.2d Francisco (1989) Cal.3d 888 Cal.Rptr. 49 [264 facts, must we may be drawn from conflicting stipulated When inferences the conflict if it the trial resolution of supported court’s accept Co. Broadcasting v. American (Winograd reasonable inference. al., Cal. 378]; et Eisenberg 632-634 Cal.Rptr.2d [80 8:60, (The 2003) Group and Writs Rutter ][
Practice Guide: Civil Appeals 18-23.) Here, for use its employees Bear Valley reshaped while Vine to overtly encouraged participate, there was no evidence it at the party, use the jump. role in took an active employees’ or that its representatives Bottomley herself lobbied persistently evidence strong There was Reasonable snowboarding. duties at the to go from her party be released court’s determination the trial from the facts support inferences stipulated initiative, thus within came on her own snowboarding that she went (f). section subdivision Labor Code the exemption provided 2. Labor Code Section 2801
Before we address Bear Valley’s of risk we con arguments, sider Vine’s claim that Labor Code section 2801 from precluded of risk as a raising defense. This to the argument presented motion, trial court joint parties’ pretrial with the worker’s along issue discussed compensation claim, above. The court rejected so. Our review of this properly question statutory is de novo. interpretation (Department Rehabilitation v. Workers’ Comp. Bd. Appeals Cal.4th 1076].) 70 P.3d
The relevant provisions Labor Code section 2801 state: “In any action to recover damages for a sustained personal within this State while employee in the line engaged of his duty or the course of his employment such ... in which recovery sought upon ground of want *10 of ordinary or reasonable care of the .... It employer shall not be a [f] (a) defense that: either employee [][] or expressly impliedly assumed the risk of the hazard of.” Section complained 2801 3 appears division of the Code, Labor only if an applies is not covered employee the workers’ Code, 2700; compensation (Lab. scheme. Devens v. Goldberg (1948) § 33 173, Cal.2d 943].) 176-177 P.2d [199
Vine contends it is consistent to hold that she was both “in the course of at the time employment” of her [her] Labor Code purposes 2801, section duties, “not performing any while prescribed participating in recreational activities on . . . her own initiative” for purposes from exemption workers’ compensation Labor coverage provided by Code 3352, section (f). 3352, subdivision She notes Labor Code section subdivi sion (f) is on the notion predicated are “in the exempted employees course of for workers’ employment” (otherwise, compensation there purposes would be no need for an She exemption). also argues while the excluded exemption her from the definition of in the “employee” workers’ scheme, compensation Court has stated that Supreme the benefits of Labor Code section 2801 be extended may to a who is not an (Edwards for workers’ v. “employee” Hollywood compensation purposes. Canteen 802, (1946) 27 Cal.2d 811 729].) P.2d [167
We are not Just persuaded. status “employee” differ may operate under Labor Code ently scheme, section 2801 and the workers’ compensation so may “course of employment” determination. Labor Code section 2801 refers to “the course of as such” employment (italics added), [] suggesting Legislature a more contemplated restrictive of “course of application than it has employment” prescribed workers’ compensation statutes, whiсh include recreational activities if off-duty they are a reasonable 588 Code, (a)(9); (Lab. subd. see
expectation employment. § 33 Bd. 1136 Comp. Kidwell v. Workers’ Appeals Cal.App.4th 540].) of such voluntarily advantage taking Employees [39 are not Code recreational benefits the intended beneficiaries of Labor section “ ‘the is in a which is based on the rationale weak employee he is refusal in an unsafe place economic unable to risk to work position, or not be held to the imposed with an unsafe hence should appliance, penalty in a . . workman has no on one . danger.’ who acquiesces [Citation.] [T]he livelihood; it is his and not his will alternative but the loss of his poverty consents, he no more leave his employ- which free to economically (Fonseca ment or a v. County Orange than soldier sailor.” 566].) Cal.App.3d Cal.Rptr. Furthermore, Vine’s of the statute would lead to absurd interpretation defenses, would be from of risk raising results. Ski resorts barred on their in actions while own injured skiing express implied, employees time signed side side with members of who have releases public the risk hazards associated with the or who expressly assuming sport, Vine, of risk defenses. subject would otherwise implied course, to be at an but injured reading happened employee-only party, the more situation Labor Code section would apply equally typical while off-duty skiing during regular employee Bd., (See, season. Northstar at Tahoe Workers’ e.g., Comp. Appeals at p. *11 to meant treat ski resort Nothing suggests Legislature employees differ by the recreational afforded their employment enjoying opportunities resort’s ently general privilege using from public, pays “It is the doing and assumes well-known risks so.1 facilities courts, to so them statutes as to make workable whenever possible, interpret reаsonable, Tahoe (Northstar and to avoid absurd applications.” Bd., It would Appeals Workers’ Comp. ski brought by to bar of risk defenses in cases unreasonable recreation, resort while during off-duty permitting employees a rule might resort those in actions its customers. Such by to raise defenses a form of for resort well the loss of compensation lead to ski pass who that ski are from workers’ exempt We hold resort employees. employees (f) section are under Labor Code subdivision coverage compensation under Code section 2801. from of risk Labor also exempt case, signed form appears signed In the release Vine was the same this begins, Valley a Bear purchase It “In consideration for the paying customers. . . . .” pass Mountain Resort season
3. The Release also moved for based on release summary judgment signed Vine when she received her season The terms of employee pass. operative
the release were as follows:
“I understand and am aware that is a skiing HAZARDOUS ACTIVITY involving INHERENT AND OTHER RISKS of and all any parts I my body. further understand that are a injuries COMMON AND sport OCCURRENCE, ORDINARY and I ACCEPT freely AND ASSUME ALL RISKS OF INJURY OR DEATH that be associated with might my participa- tion in this sport. law,
“. . . To the fullest extent allowed I agree RELEASE FROM LIABILITY, and to INDEMNIFY AND HOLD HARMLESS Bear Valley of, Mountain Resort. . . from and all any on account or in liability any way from, resulting death or personal injuries, even if property damage, caused by NEGLIGENCE, in connected with any way my I participation sport. further AGREE NOT TO MAKE A CLAIM OR SUE FOR INJURIES OR DAMAGES connected any way with my in this even if participation sport, caused by NEGLIGENCE.” motion, court denied Bear Valley’s summary judgment finding
terms of the release in that ambiguous does not “skiing” include necessarily The court snowboarding. also ruled that a reference in the pass 1999-2000 “season” did not unambiguously Vine’s evi- apply injuries, dently that the theory did not occur employee party during “season” because it took after the had placе been closed to the slopes public until the next season.
Bear Valley notes the court also excluded reference to the any release during however, trial. It does not challenge of that propriety ruling, that the court erred claiming only by failing grant summary judgment. that Bear protests a more favorable improperly seeking standard of review by limiting (See its claims in appellate this fashion. Solis v. Kirkwood *12 354, Resort Co. (2001) 94 360-361 Cal.App.4th Cal.Rptr.2d [114 265] deferential [contrasting review of trial court’s assessment of extrinsic evi- dence to resolve in ambiguity release with review summary of independent judgment Vine’s is well ruling].) taken. Review of a point ruling denying summary judgment is when “the same inappropriate raised questions motion are then decided adversely to the unsuccessful after a moving party TJD, trial on (Waller the merits which is itself free from error.” v. prejudicial 830, (1993) 38]; Inc. 12 836 see also Cal.App.4th Cal.Rptr.2d Eisenberg [16 al., Writs, 2:242.2, et Cal. Practice Guide: Civil supra, Appeals 1 590 Here, court err in another 2-107.) regard, while we conclude trial did
p. at trial over the court’s on the release in ruling Bear not Valley may pass at the summary order to another bite get judgment apple. event, correct. judgment plainly
In the court’s denial of summary any as to the term included “skiing” The release was at least whether ambiguous, extrinsic evidence to resolve the Valley no snowboarding. presented that understood It noted Vine’s she deposition testimony ambiguity. merely evidence exchange had executed a release in for her season This pass. she argued in the release. Bear meaning Valley shed no terms light below, court, a snowboarding it does in this includes as “skiing” (1999) 823 Campbell Derylo matter of law under v. 75 Cal.App.4th [89 might court find that a Campbell concluded Cal.Rptr.2d 519]. county safety regula conduct violated a ordinance snowboarder’s providing (Id. However, case in this 829.) tions for skiers. at p. pertinent question would have believed Bear Valley how reasonable Vine’s position person Co., (Solis Resort understood the release. v. Kirkwood 94 scope does not answer that Campbell question.2 Cal.App.4th Primary 4. Risk Assumption of
A which Bear Valley sought summary judgment third ground no risk. Bear contended it owed protect primary assumption Vine of snowboard against jumping. inherent sport that she not assume the risk of a defective She jump. presented did responded expert jump’s a declaration from an accident reconstruction opining to an extreme risk of using defective and those design subjected of risk doctrine did The court decided primary assumption serious injury. not snowboarding inherently require not because “the does sport apply, an extreme risk of are as to create designed way such jumps Park, 184 (1995) Inc. 37 (Branco Kearny Moto injury. Cal.App.4th [43 392].)” Cal.Rptr.2d It summary contends the court erred by denying judgment. instruction on
also claims the court denied proposed improperly 2 remand, again litigation following we note the benefit Should the issue arise necessarily general easy provided answer is not rule parties and the trial court that against party drafted the terms. That in a are who ambiguities contract construed construction, including of extrinsic only consideration applies maxim when other canons 84, intent, (Oceanside Fidelity ambiguity. Ltd. v. parties’ fail to resolve the evidence of 487]; (1997) Badie v. Bank Cal.App.4th Cal.Rptr.2d 56 1448 [66 Federal Bank 273].) (1998) Cal.App.4th Cal.Rptr.2d [79 America implied applies, in the release express assumption We of risk note also if (Allan v. Knight play. into Snow principles risk would come discussed 813]; Summit, v. Santa Cal.Rptr.2d Allabach Cal.App.4th 1374-1375 [59 Inc. 330].) County 1012-1013 Fair Assn. Clara *13 of risk. Vine asserts the not summary judgment
primary assumption ruling She the court refused to instruct on appealable. argues properly risk, because the defеnse issues for primary assumption only legal presents the court to determine.
Again, we deem it to review the summary judgment ruling. inappropriate There are circumstances in which a denial of is review summary judgment TJD, Inc., (Waller supra, able after a trial on the merits. at However, 836.) in this case a deal more evidence p. great was presented trial than in the on the critical summary judgment proceedings question whether the on which Vine was jump constructed. defectively The interests of would not be served if we justice ignored fully developed record and conducted an review of the independent summary judgment (Id. 835-836.) papers. pp. ante), event,
In as with the any (see release question pt. court’s denial of summary judgment of risk primary defendant, correct. As clearly had moving the burden of showing one or more elements of Vine’s cause of action could not be (Code Proc., 437c, Merrill v. Navegar established. (o)(2); Civ. subd. § 26 Cal.4th 476-477 116].) 28 P.3d Primary of risk to foreclose operates owed the defendant any duty plaintiff, thus is a defense that is “amenable to resolution generally 313; Kahn, judgment.” (Knight, supra, supra, summary 3 Cal.4th at p. Cal.4th at 1004.) p.
However, “[although defendants
have no
generally
to eliminate
legal duty
(or
itself,
protect
plaintiff against)
risks inherent
it is well
sport
[a]
established that defendants
do have a
generally
to use due care not to
duty
increase the risks to a
over and above those inherent in the
participant
sport.”
315-316; Kahn,
(Knight,
supra,
Therefore, in order to establish owed no to Vine because she had assumed the risk of had to injury, show either that its did increase inherеnt risks of snowboard or that whatever jumping, defects the have had were included in those risks. It jump may attempted neither in its showing moving is an papers, contending merely falling inherent risk of This was not sufficient to Vine to undertake sport. require the burden of a triable issue of fact as to whether the raising jump posed Proc., 437c, those inherent beyond (Code in snowboard Civ. jumping. § *14 592 Co., supra, see Solis v. Kirkwood Resort at (o)(2); 94
subd. risk of whether artificial skiing, jumps 364—366 inherent falling pp. [while inherent increased and created warn was duty question built resort risk for jury].)3 as
We discuss Bear instruction on jury primary proposed below, of risk. secondary of risk in connection with assumption sumption se a instruction. of risk is not Primary per proper subject assumption risk Our Court has made clear that whether of Supreme primary assumption a a from risk is a particular defendant’s negates duty protect plaintiff court, supra, jury. (Knight, made 3 determination legal 296, 313; Kahn, Thus, 990, 1003-1004.) supra, 31 Cal.4th Cal.4th at a have raised the issue trial of motion for by way might properly (which directed verdict would have resulted in a we could ruling properly Nevertheless, review). in and second certain circumstances primary so the of risk are intertwined and instruction ary assumption required fact, did, can determine whether the defendant in increase risks properly risk should be secondary inherent in a hazardous so that of assumption sport considered. Risk Secondary Assumption
5. of Kahn, Knight’s reconciliation of the In our Court summarized Supreme fault follows: “We doctrines of risk and assumption comparative of risk’ had been used in connection with observed that the term of ‘assumption the issue be resolved was whether the two classes of cases: those which of defendant owed the a care actually duty assumption plaintiff (primary but had breached a care where risk), those in which the defendant face the issue whethеr had chosen to the risk harm risk). duty (secondary the defendant’s breach of presented by 303-304, cases, 308.) the latter class of ([Knight, 3 at In supra, Cal.4th] pp. concluded, could the doctrine we issue be resolved by applying fault, risk would not decision to face the comparative plaintiff’s 3 Resort Hole Mountain (D.Wyo. refers us to Estate Harshman Jackson 1329, 1342-1346, 2002) that the risk of a fatal F.Supp.2d in which the court determined that had taking park” in a “terrain been landing by experienced crash snowboarder jumping. note that similar night before an inherent risk of snowboard We modified Resort, 1999) Inc. (6th Indianhead Mountain 166 F.3d Shukoski v. Cir. result was reached 848, 852-853, falling holding quadriplegic was rendered after that a snowboarder who clearly expert injuries. assumed the risk of his garden,” slope, in a marked as an “terrain however, whether the defendants’ elevation inherent opinions, considered Neither these it has scope developed took out of of risk doctrine as the case designated parks plaintiffs specially were with emphasized California. Both 1344—1345; Shukoski, (Harshman, supra, supra, p. at 166 F.3d warning signs. F.Supp.2d 852.) p. at case, as a bar In recovery. such a
operate plaintiff’s knowing complete of the risk functions as form of voluntary contributory acceptance (id. 310-311.)” (Kahn, Cal.4th negligence, pp. *15 one,
Cases
the
like this
where
contends the defendant
plaintiff
the
breached
not to increase the risks inherent in a hazardous
duty
sporting
both
of the
of risk
activity, present
aspects
doctrine. If the
assumption
risks,
fails to
the
any
show
increase in
inherent
or if
trial
court
determines that the
inherent
only risks encountered were
in the
sport,
defendant
on
prevails based
of risk. If the
primary assumption
jury, properly
instructed
of the defendant’s
determines the defendant did
scope
duty,
risk,
increase
inherent
it then considers the
claim based on
plaintiff’s
secondary
of risk as an
of the
assumption
aspect
fault.
plaintiff’s comparative
(American
Court,
30, 36-37;
v.
Corp.
Superior
supra, 79 Cal.App.4th
Golf
Park, Inc.,
v.
Branco Kearny
Moto
37
at
supra,
Cal.App.4th
“This
p.
however,
second
of
determination
still
the trial
duty,
court’s
hinges upon
instance,
determination of the
in the
question
duty
first
by defining
(Staten
risks inherent in the
at
(1996)
issue.”
v.
sport
Superior Court
45
657].)4
1633
Cal.App.4th
Cal.Rptr.2d
[53
of the
duty
aspect
secondary
risk doctrine was
assumption
addressed
actually
on
by
instmction
proposed jury
primary
of risk.5 The
risk
offered
assumption
secondary
instmction
Bear Valley addressed the risk of
when
injury
assumed
she attempted
4
Whether
defendant has
sport
increased the risks inherent
a question
is
reserved for
the court insofar as it
legal
scope
involves the
determination
duty.
of the
of the defendant’s
may
“inherent,”
The court
expert opinion regarding
customarily
consider
the risks
considered
though expert
(Kahn,
opinion
controlling
legal question
duty.
supra,
on the ultimate
1017; see,
p.
e.g.,
31
Cal.4th
Kane
System,
Cal.App.4th
v. National Ski Patrol
Inc.
88
204, 213-214
Cal.Rptr.2d
patrol
[105
instructor’s assessment of terrain and of
600] [ski
risk,
ability
However,
presented
students’
inherent
despite criticism from numerous experts].)
are,
once the court has
resolved
issue of what the inherent risks
whether the defendant in
fact increased those
under the
particular
may
question
circumstances of a
case
(Kahn,
1018; see,
jury.
p.
e.g., Campbell Deiylo, supra,
Therefore, it was not sufficient for the to be instmcted that Vine’s jury recovery should be diminished in “negligence.” to her The court proportion BAJI, below,8 the gave standard negligence instructions from in full quoted do, “Negligence doing something reasonably person is the a or prudent which would not something reasonably prudent failure to do which a person would do under circumstances by similar to those shown evidence. ordinary “It is the failure to use or reasonable care. “Ordinary ordinary persons pmdence or care is that care in reasonable which would use by order to avoid to themselves or others under similar to those circumstances shown (BAJI 3.10.) the evidence.” No. determining “One in helpful person negligent test that is whether was is to ask and answer not, the question ordinary if a been in the person prudence whether or had same situation possessed knowledge, anticipated of the same he would have foreseen or that someone might by have been or as a of his If the result action or inaction. answer to reasonably “something prudent which characterized negligence do,” . . . failure to or reasonable care ordinary would not and “the use person The circum- to those shown evidence.” by under circumstances similar Bear took many Valley the evidence were that by employees stances shown Vine’s The saw a of about 30 of fellow at the jump party. jury videotape no that all these There was safely jump. suggestion employees completing chose face the acted when negligently they voluntarily posed people below in our caused analysis by As we explain prejudice jump. was the manner in which Vine attempted error, the court’s instructional it take to consider her negligent, willingness jury likely the risk. of care owed regarding duty
The instructions were erroneous equally Valley’s The court directed the to evaluate Bear conduct jury Valley. care,” which a has party the standard of or reasonable under “ordinary . . . would have foreseen acted if negligently “person ordinary prudence have as a result of the injured” that someone been might anticipated ante.) 3.11; fn. (BAJI or inaction.” Nos. 3.10 see “action party’s of cаre even if Bear ordinary standard told apply resort industry. to the the ski customary conduct conformed standards 8, ante.) 3.16; fn. Nowhere was the informed that Bear (BAJI No. see no from the risks inherent snowboard owed Vine protect Indeed, since the instructions suggested just jumping. opposite, riding that the inherent risks of a snowboard over clearly foreseeable result built might injury. of assumed risk setting example The ski is such obvious resort owner’s Knight used it as an discussing scope property example duty: use care to eliminate due ordinarily owner required property
“[A] setting, or her In property. sports conditions his dangerous [Citation.] however, as dangerous viewed might or conduct otherwise conditions *18 Thus, on a ski moguls the although are an of itself. integral part sport often exist these configura- a not were might run of harm to skiers risk pose the removed, risks are of by moguls part challenge tions posed avoided, to ‘yes,’ reasonably could have been then not is and if the action or inaction question 3.11.) (BAJI negligence.” No. avoid it would be depends ordinary upon of care required person caution of a in the exercise “The amount of reasonably prudent person to a apparent apparent are or that should be the conditions (BAJI 3.12.) by evidence.” No. under similar those shown circumstances grown a that had person a conformed or did not conform to custom “Evidence to whether considered, necessarily but is not locality ought relevant given in a or business is up by be determined negligent. That issue must controlling person the issue whether that on 3.16.) (BAJI you.” I have No. the standard of care that stated
597 and a has no to eliminate them. In skiing, ski resort sport duty [Citation.] the nature a is relevant in defining duty respect, sport highly care owed defendant. by particular (or
“Although legal defendants have no to eliminate generally duty protеct itself, a inherent against) risks in the it established that is well sport defendants a do have to use due care not to increase the generally duty Thus, ato over and those in the above inherent a participant sport. although run, ski resort has no a to remove from ski does duty moguls clearly have safe, due duty to use care to maintain its in a working condition so towropes as not to expose skiers to an increased risk of harm. The cases establish risk, the latter a ski type negligence, clearly resort’s is not a risk posed (inherent in assumed (Knight, sport) aby participant. [Citation.]” supra, 315-316.)9 3 Cal.4th at pp.
The duty not safely maintain to Bear towropes apt comparison in role the mound of Valley’s snow that Vine and others shaping over jumped at the party. unlike was an employee jump, towropes, essential compo- nent of the itself. Knight sporting activity out that “the nature pointed defendant’s in the duty context nature sports heavily of the depends itself. sport Additionally, legal of the owed scope duty defendant in, to, will also frequently defendant’s role or depend relationship sport.” (Knight, supra, Knight 3 Cal.4th at proceeded approve cases analyzing resort, “the of the owner of or ski ballpark process defining risks inherent in the not virtue of the only by nature sport itself, of the but also reference steps sponsoring business sport to the entity reasonably should be obligated to take order to the risks minimize without altering (Ibid., nature sport.” added.) italics
This
passage Knight
care
standard of
provides
appropriate
Bear Valley’s
should have been
liability
determined.10 The
should have
considered
whether an
ordinarily
person
prudent
position
9
arising
Numerous cases
ski
injuries
aspects
from
resort
considered
have
various
of the
post-Knight
risk
beyond
doctrine. For
examples
opinion,
those cited in this
see 6
Witkin,
ed.,
Torts,
339-343;
Summary
(9th
1090C,
of Cal.
supp.)
Law
2003
pp.
§
see also
Annotation,
Liability
Ski
Injuries Resulting
Resort’s
for Skier’s
From Condition of Ski Run or
Slope
55 A.L.R.4Ü1 632 section 4.
of proprietors
sporting
The duties
coparticipants
venues are distinct
from those of
or
instructors, who are not
have
sport
they
held to
increased the inherent
risks of a
unless
injure
engage
intentionally
range
another
sport’s
reckless conduct outside the
see,
(Knight, supra,
ordinary
Mastro v.
[coparticipants];
e.g.,
activities.
would anticipated minimize the have taken risks without Bear should to Valley reasonably steps been the This standard has nature of of snowboard altering sport jumping. similar a who fell bicyclist in a case sustained involving injuries by approved (Branco Kearny v. over a man-made “moto riding park.” while Park, Inc., 187, 192-193; supra, Moto also 37 see Cal.App.4th pp. USA, Inc., (1995), 34 Fuji Country Morgan 134 [40 being of duty course owed to minimize risks [golf operator Cal.Rptr.2d 249] Valley’s balls nature of Bear by altering sport].) proposed struck without obligation its not of risk instruction assumption properly explained primary risks of while preserving increase inherent snowboard jumping, ante.) (See fn. engage vigorously sport. participants’ opportunity erred risk offered give The court of instructions by failing assumption Bear Valley.11 by have “advisable” give
The dissent would been acknowledges but contends Valley, of risk instruction Bear assumption by primary proposed of As error is of the evidence counsel. light arguments harmless risk, Valley’s secondary assumption to Bear instruction proposed however, did the instruction the evidence not argues support dissent aware of the increased risk showing posed there was no Vine was because no such agree showing, We there was negligent formation jump. none was but required. defendant’s
A encounter with a risk caused “knowing breach,” in Bear instruction based posited Valley’s proposed language Knight, causative does not entail the breach its knowledge effects, while either or in If Vine had encountered logic. in law herself, it, it was later learned try only decided to snowboarding by Bear would dangerous way, Valley Bear Valley particularly shaped in a defense negligence have been entitled to raise an risk still risk for the Vine. be appreciated by action It is the that must the defendant’s breach doctrine to come into not play, risk duty.' Bear need have been aware of not acknowledges dissent breach, on a that she instruction showing but argues proposed depended give what Bear Valley challenges proposed failure to instruction on also court’s instruction, rejected this properly hazard The court terms “obvious doctrine.” Vine did duty Vine of hazard. While had no to warn an obvious told theory liability to argue did allegation complaint, she include a warn Furthermore, after Rowland v. Christian Cal.Rptr. 69 Cal.2d jury. 561], liability if flowing from obvious hazards have not been excused from P.2d landowners id., Torts, 302; Witkin, Law, (See Summary § of Cal. injury was foreseeable. 218-220.) (2003 supp.) pp.
599 knew the “more than the normal” The dissent posed correctly risks. Knight notes that refers to the of risks “created” or knowledge plaintiff’s 3 (Knight, supra, defendant’s breach. Cal.4th “imposed” 310-311, However, 315.) Knight, as we read encounter with pp. plaintiff’s the risk in the general must sense “knowing” only plaintiff Thus, understood the nature of the involved. risk Vine understood and snow, assumed the of in a fall but she risk herself did not injuring assume the of risk on a concealed in Some landing spike jump.12 elevation of the inherent created falling of must have been danger claim; however, an for Vine to have actionable she did negligence not have to of the subjectively elevated increment risk to appreciate inherent assume the risks of snowboard jumping. Knight recognize
We secondary includes its of assumption risk discussion “see” citations to authorities consideration approving 3 Cal.4th at (Knight, supra, plaintiffs’ subjective awareness of risk. p. Kirk v. Washington University (1987) State citing Wn.2d 448 P.2d 109 [746 Schwartz, 290-291]; 9.5, [(1st 1974)], ed. Negligence, Comparative § 180; Diamond, Risk Assumption p. Comparative Negligence: After Integrating Theory Contract into Tort Doctrine Ohio St. 52 LJ. However, 748-749.) in cases where secondary risk arises from assumption risk, defendants’ breach of the not to increase a duty inherent sport’s to be requiring aware of the would plaintiffs specifically increase be inconsis tent with Knight’s analysis. Plaintiffs could avoid the of risk assumption defense by claiming were of the they ignorant effects of defendants’ negli minor,” gence, “however risk would “voluntary takers” “avoid all (Knight, 3 Cal.4th at for their own responsibility actions.” Indeed, a would be most not plaintiff likely notice results of the defendant’s when the in the negligence increase inherent risk was only slight, and the would be defense unavailable where it is most appropriate.
Here, instance, had decided that Bear increased Valley the inherent 5 no fault be allocated jump by percent, would Vine for her of risk unless could she prove perceived it, least, the enhanced (or fraction the risk part to the according intended; dissent). case, We do not believe what Knight this is such a of risk is an available defense if the plaintiff participated is aware of with of its inherent sport knowledge risks. if a Obviously, defendant, created increased risk can be included awareness The fact provider sporting distinguishes that Bear was the venue for activities 394], from Calhoon v. Lewis case property protect which the court that residential owners owed no held skateboarder falling pipe planter from the risk on a located in a box. fault. But does Knight evaluation jury’s comparative predicate *21 considerations. of the risk on such secondary specific subjective assumption “flexible, a commonsense” consideration of Knight contemplated a legal in “both a defendant’s breach of by fault the jury, comparative in decision to an voluntary engage to the and the duty plaintiff’s plaintiff an are the to reach unusually risky sport” weighed by jury equitable of fault. 3 Cal.4th apportionment (Knight, to 696].) (and much) how it fair reduce a by 834 R2d Whether defendant’s elevation for caused the recovery injuries negligent plaintiff’s risk, risk, the the is a if the was unaware of increase in the even plaintiff the for of fact to decide in circumstances light the trier question particular Here, failed to this critical to question each case. the instructions present consider asking the instruction the to Vine’s Valley’s jury Bear jury. proposed caused defendant’s breach” injury encounter with a risk of “knowing and been given.13 framed the should have adequately question, ver the affected the It is instructional error probable prejudicially Valley’s effect of the error” on Bear “ability dict. The “natural and probable the was substantial—Bear was Valley to full case before place jury” [its] of the an of risk effectively assumption deprived opportunity present (Soule 8 Cal.4th Corp., supra, defense to the v. General Motors jury. the 580.) It not able to ask the to factor Vine’s decision accept jury fault, the risks into the determination comparative jump’s of Bear yardstick measuring a inaccurate for the given grossly scope us Court has dirеcted using to the the Our duty jump. Supreme employees giving instruction Valley faulting the court for not Bear The dissent accuses Bear did a Valley’s proposed instructions not include salient Valley proposed. never It is true Bear risky a if comparative may assigned engaging sport be for even the qualification—that fault unreasonably. the first time in its plaintiff point did act While Bear relies on this for brief, challenges give proposed its instructions. appellate squarely it also the court’s failure'to Knight’s Knight, adopted correctly reflected established in principles Those instructions fit terminology. could have been better tailored to the proposed While the instructions (we below), seriously disputed it be example offer an cannot circumstances of case preserved its claim of error. properly instructional might in this case read explanation applied A of risk doctrine as fuller as follows: duty from the risks of inherent protect plaintiff defendant had “The no risk is one that cannot eliminated sport jumping. An inherent of recreational snowboard chilling vigorous fundamentally changing sport participation nature of the without sport. beyond jumping did a not to increase snowboard “The defendant have duty, negligent. it was sport. If the defendant breached that risk inherent in the level of fault, However, you plaintiff’s parties’ should consider determining comparative jumping. Whether the acted voluntary the risks of snowboard decision encounter risks, you may recovery to reasonably choosing to those reduce her account or not in take of all the evidence.” you proper light amount find of risk whatever
look at four further factors in effect of evaluating instructional prejudicial instructions; evidence; (1) (3) error: of the the effect of state other effect of arguments; counsel’s indications itself that it any (Id. at 580-581.) was misled. the first three factors in this Only pp. apply case.
The evidence that Vine certainly finding assumed substantial supported risk. There no trial that dispute snowboarding very risky sport. design Whether the of the magnified the risks was jump disputed issue. on Valley’s expert “terrain who viewed parks,” photographs at issue and the Vine was videotape using day employees *22 world, that the injured, testified was of those around the typical used jump and could been not have to exclude the that a designed possibility jumper Nevertheless, would lose control.” “body Bear held to a Valley was standard care, and the was not told to Vine’s ordinary jury weigh of the acceptance risks of snowboard of the assessing when her share fault for her jumping instructions, above, The injuries. other as discussed did to cure these nothing Instead, problems. Bear and omitted they greatly duty overstated any mention of Vine’s of risk.
We the agree with dissent that the to on the prejudice Valley Bear issue of its duty mitigated was case way the was Vine’s did presented. counsel suggest Valley could be held liable because an merely foreseeable, snowboard was the instructions would have jumpers although such a and permitted finding. evidence was aimed at argument properly whether the was constructed negligently so as to pose beyond those encountered normally snowboarders. hand,
On the other was not informed that Bear had no jury to take to reduce the steps risks inherent snowboard or to jumping, change the essential of the nature of a sport. thus deprived powerful However, avenue of we need not decide whether this error argument. alone it with the prejudicial. Considering together court’s failure to instruct the risk, jury recovery Vine’s could be diminished her we believe reasonably probable misled its jury actually apportionment (Soule of fault. General Motors 8 Cal.4th at fin. Corp., supra, Vine, dissent, and the contend 54.4 jury’s allocation of percent fault to Vine demonstrated held her accountable for her decision jury a risky A close examination of the participate sport. closing arguments, based, and the evidence on which us were convinces otherwise. Vine’s they counsel and a on grounds jury might number proposed disputed consider Vine contributorily (1) tempted negligent: “simply taking understood; (3) have (2) risks she should taking jump despite jump;” before; to reach failing than she had tried bigger any taking area; she was airborne. her balance when losing landing jump’s taking risky jump Vine for against holding responsible Counsel argued many and that snowboard very experienced jumper, she was noting been which was to have were this taking particular jump, supposed others against use of its size. He argued for anyone safely regardless designed was to blame for her by contending jump’s design faulting technique for her loss of control. counsel, after the test referring negligence
Bear Valley’s in the same (whether 3.11 an ordinarily prudent person in BAJI No. provided that snowboard jumping situation would have anticipated injury), emphasized to take this He analyzed and Vine chose risky activity deliberately jump. enough her failure to build noting technique” length, Vine’s “jumping backward-leaning her “stiff legged” posture her speed approach, board, her while balanced over gravity instead of a low center keeping air, back her to land on her causing arms as she lost control in flailing her feet. Counsel out that none of other jumpers instead pointed had lost control in manner. saw videotape *23 and undisputed evidence of Vine’s was faulty performance The While the evidence It came from witnesses both overwhelming. parties. also the attempt by risky undisputed, that snowboard jumping no to attention to this factor found support counsel direct the jury’s failure to exercise reasonable care to under injury avoid the instructions. A failure, Vine’s correlated with easily despite circumstances fundamental to execute the snowboarding considerable experience, properly to her decision to accept It was not connected easily jumping techniques. and as done times before many as she had safely risks of snowboard jumping, on same on day without doing of her were many peers same jump. factor of risk in its allocation if inclined to consider the
Even were jury awith fault, court Vine’s counsel instructions given by provided rebuttal, as argument he Bear Valley’s In his characterized rejoinder. potent risks, we are and because there snowboarding, are risks here in “there some counsel to the closing jury, In his comments don’t have to careful.” risk, risk in That’s consideration: “Hey, sport. as an irrelevant dismissed risk The tell you. what the instructions will it That’s not goes. jury way being could foresee you' somebody tell if you instructions will jury to that the failure could avoid the screwup, injured by screwup, you your do is negligence.” so instructions,
The it including court’s admonition to on the law as rely instructions, was stated in the fully counsel’s erroneous supported legally clear, it was under argument. argument Knight, because improper that risk in “the way goes” injuries is indeed in actions recover for sport sustained while in hazardous recreation. The instructions participating pre- vented from in an considering of risk obviously appropri- ate context. is a of a Snowboarding classic sport requires example to assume considerable for a risks. It is unfair participants fundamentally go case without instruction on snowboarding injury any assump- tion of risk. We say cannot court’s error had no effect on the instructional verdict.
DISPOSITION The judgment rеversed. shall recover its costs on appeal. J., Corrigan, P. concurred. Acting
POLLAK, J., Concurring with the of the Dissenting. I agree analysis majority as to all issues that the except conclusion should be judgment reversed because of the trial court’s failure instruction give unrequested issue, however, of the risk. secondary turning Before to that I wish to somewhat for which I expand reasons concur conclusion that Charlene Vine’s claim does not come within the scope (the Act), Workers’ Act Compensation Labor Code section et. seq.1 injury is not covered compensation. workers’
Plaintiff’s “The right to workers’ benefits is compensation wholly statutory. [Cita- *24 ‘This is exclusive other statutory right tions.] of all and common statutory remedies, law and substitutes new of and the system rights for obligations common law rules for their governing liability of to employers injuries ” (Northstar at Tahoe v. Workers’ Bd. 42 Comp. Appeals employees.’ (1996) (Northstar 1481, Tahoe).) at Cal.App.4th 1484 Labor [50 475] Code section 3600 for certain workers’ benefits where provides compensation include, conditions of are met. of The conditions compensation compensation “at among other the time of the both the the things, injury, employer are the of this employee subject compensation division” provisions “at the time the of the service injury, performing employee growing out of and or her incidental to his and is within the course employment acting 3600, (§ (2).) of his or her & (a)(1) subd. Section employment.” 1 statutory All are to the Labor Code references unless otherwise indicated. (a)(9) that an is entitled to compensa-
subdivision further employee provides out voluntary the does not arise participation tion benefits “[w]here recreational, social, athletic activity constituting or any off-duty part duties, these are work-related where activities except the employee’s of, the are or impliedly by, or expectancy expressly required reasonable employment.” statutory the Court held under similar
In Colorado Supreme was the course of his acting an of a ski resort within employee provisions benefits, he even though and thus was entitled to compensation employment, (Dorsch v. Industrial Commission while on his off. skiing was injured day 458].) court that when an (1974) Colo. P.2d reasoned 219 [523 recreation, determining the test for proper business principal employer’s was in the course of employment requires whether the injured employee the to which the derives substantial “(1) employer consideration of extent benefit the the value intangible improvement from policy—beyond morale; (2) represents the to which the recreational activity extent employee (3) the obligations for the extent which compensation employment; which the injury; create the special danger precipitates employment an was inducement activity employ- whether the use of recreational ment; contem- facility whether the use of the recreational was originally (Id. at 222-223 at time plated by employment.” pp. parties [523 test, the Dorsch court concluded 460].) P.2d at p. Applying in the course of his because injured employee employment employer area, to attract to the ski the ski used ski incentive pass employees remuneration, ski finally, was a use pass employee’s part from the beginning employment. pass contemplated parties (Id. 460].) at at P.2d p. p. statute, an outcome under California
In order avoid such (f), excludes adding amended section 3352 subdivision Legislature of the workers’ the definition of an subject provisions from employee ski to work at law: lift “Any person operator compensation employed duties, of and not perfоrming any prescribed snow ski area who is relieved his initiative.” recreational activities on own while participating Tahoe, Northstar (§ (f); subd. (1975-1976 Reg. 3d of Sen. Bill No. 548 reading analysis from
quoting author, a recent Court Sess.) Colorado ‘According Supreme [“ [bill’s] to a ski resort bartender who benefits granted decision worker compensation his time on his skiing employer’s premises. while off *25 injury this that it will such an hope prevent Proponents legislation from also ”].) being compensable California.’’ motion, indicates, a joint the the here submitted pretrial As majority parties recited in the majority opinion, requesting facts based undisputed trial court to determine whether was the workers’ injury covered plaintiff’s assertion, Contrary statute. compensation stipulation Vine was the course her does not injured employment necessarily establish workers’ Section contains 14 exclu- coverage. compensation sions from the broad definition of an in section 3351 that employee apply (§ 3352, 3350.) (f), the Act. Under section throughout subdivision person such as Vine a ski lift to work at a snow ski area is operator not employed an if for of the Act at the time of she was “employee” purposes duties, “relieved of and not while performing any prescribed participating recreational on . . . activities her own initiative.” It is clear that snowboarding Thus, was not Vine’s among duties. there is no real prescribed job dispute that she had been “relieved of and not performing any prescribed [was] duties” when was she The more difficult is whether her injured. question bar, at when she was at the snowboarding employee party, helping was in a recreational “on . . . her own initiative.” participation activity
While I with the agree that there is evidence majority substantial to support the trial court’s determination that was on her snowboarding own initiative, I believе conclusion finds further cases address- support (f) ing section and applicability subdivision section Tahoe, In Northstar at (a)(9). subdivision at pages 1483-1485, the court found that area a ski while on employee injured skiing her off excluded day was as a (f). covered subdivision employee by As was not time employee to be at ski resort at all at the required no injury, there was been all she had relieved of dispute prescribed duties Tahoe, (Northstar at skiing on own initiative. On the in Lane hand, Homewood Mountain Resort 25, 2002, other (Jan. Cal. Workers’ 301121), Bd. No. App. SAC the Workers’ Comp. Compensation Board found that Appeals (f), section subdivision did not preclude of workers’ recovery benefits where the had encour- compensation employer aged in a event in which employee participate she company-sponsored The while injured. plaintiff was in a furniture race in participating which staff members from each entered different vehicles made department area, from race furniture. The and the on ski put marketing encouraged each The department enter sled. sleds were department checked for safety employer, judged employer competition. The race took after the had closed but the day, for the bar and place slopes restaurant were still board found that while open. appeals prior start of the race had work finished for thd she was not day, engaging in the recreational on activity “her own initiative” because her employer’s in the event. encouragement participation
Non-ski-related cases of section turning meaning subdivi- (a)(9), sion some additional section was not provide guidance. Although cases, issue in these sustained coverage injuries during off-duty *26 606 were turned in these cases on whether the activities
recreational activities 3600, . . under section . employment” or “expressly impliedly requirеd Bd. 191 (a)(9). Comp. Appeals subdivision In Smith v. Workers’ 127, (Smith), the court held 141-142 Cal.Rptr. Cal.App.3d [236 248] at died accident while windsurfing school math teacher who in high to his attendance at the off- was entitled benefits because school picnic The club was an his requirement employment. math campus picnic implied was held attendance at the an picnic implied require- court that “[b]ecause from his engag- decedent’s his accident which resulted ment of employment, which were part parcel picnic’s in the recreational activities ing (Id. at ‘entertainment’ is connected to his causally employment.” p. (1983) 146 Cal.App.3d Bd. Ezzy Comp. Appeals Workers’ Similarly, 252, 90], law clerk the court held that a student 263 Cal.Rptr. part-time [194 to was entitled workers’ game at a law-firm softball sponsored was to feel that she was benefits where “it reasonable compensation [her] contrast, Bd. In in Todd v. Workers’ Comp. Appeals expected participate.” 757, (Todd), the held court (1988) 198 760 Cal.App.3d Cal.Rptr. [243 925] his that an while basketball on employee injured employer’s property playing (a)(9) not entitled under section subdivision his lunch break was during “[although to workers’ benefits. The court reasoned compensation condoned the basketball playing premises, employer apparently required, encouraged, sponsored there was no evidence that employer 760; (Todd, at see also supra, recreational 198 activity.” Cal.App.3d (2004) 117 838 Group Cal.App.4th Mason v. Lake Dolores 914].) Here, the vice- Bottomley, was asked Eric it is undisputed attend the Valley, employee party for Bear president operations that Vine was out at the bar during stipulated party. parties help Thus, her attendance assistance” before she was “working injured. providing of her employ at the well be considered an implied requirement could рarty However, on her own initiative. entirely ment—she did not attend party at when finished no that she she go snowboarding there was requirement for the the entertainment snowboarding bar. Bear was Valley argues Smith, the entertainment for the picnic as just windsurfing party, difference between these but there is a significant supra, Cal.App.3d Smith, at the was to obligation participate two In the teacher’s picnic cases. activities, with the relationship to develop the extracurricular presumably Thus, the teacher’s participation as to students well provide supervision. Here, however, his activity employment. implied requirement way In no serve beer the bar. obligation help Vine’s work-related this case In this respect, did extend to obligations snowboarding. her implicit Tahoe, supra, similar to more Northstar Todd, 757. Although Cal.App.3d particularly *27 snowboard, that enabled her to it did not obviously facilities provided or in that The intent behind engage expressly impliedly require activity. (a)(9) section subdivision “was eliminate from workers’ compensa- recreational, social, tion sustained or athletic activi- coverage injuries during (Todd, ties only which are work-related.” remotely Cal.App.3d above, (f) As seen section subdivision was added strengthen this limitation and to ensure that no was made for persons working exception at snow ski areas. because Vine work- Accordingly, was not performing initiative, related duties and chose to on her own go snowboarding trial court determined that she is not entitled to workers’ correctly compensation sustained, benefits and she injury for the she therefore that is entitled to maintain this action.
The jury instructions were not prejudicially erroneous.
The issue that was to the presented jury this case was whether Vine was injured because and obvious” risks of “open snowboard or jumping, because negligently created that increased jump unreasonably the risks over and above those that were to snowboarders and apparent inherent in the instructed that seeks sport. jury was to recover “plaintiff damages based a claim of and upon verdict asked the negligence,” special determine whether defendant was construc- “negligent design, tion, of the snow board testing, supervision on which was jump injured.” three presented witnesses who testified that expert was jump unsafe increased the
unreasonably risk of inherent substantially to the snowboarder. sport apparent average One explained expert force, designed was in a manner that jump resulted in excessive landing in violation of snowboard standards issued the United States Ski and jump Snowboard (USSSA) Association and similar Canadian standards. Another concluded, took was not a safe that it jump was jump, “[T]he [Vine] unsafe, and subjected it her to a about 12 feet. . . equivalent impact height the same if she had fallen down onto a flat from a directly surface height of 12 feet.” The with a that increased the jump designed concavity velocity of the snowboarder and the force had if the been upon impact; jump concave, rounded than rather Vine would have sustained an equivalent impact standards, one and height one-half feet from her Under USSSA only jump. feet, the maximum is five under equivalent height Canadian impact standards is two and half feet. In his equivalent closing argument, argued, Vine’s “This was a bad Instead of the usual attorney taking day jump. and a half about to build Mr. built the somewhere jump, Murphy jump that, hour, half, around an hour and a A like that’s something jump [f] can you to be that land on without properly designed supposed anywhere forces, high sustaining unnecessarily high equivalent impact unnecessarily his He detailed how witnesses had testified upon landing.” forces expert these made did not with standards and deviations industry why jump comply he shоuld find argued unsafe. Based on this evidence jump argued He also that Bear designed. jump negligently failed test because it as negligent testing Murphy required standards, the ski and failed to because industry provide supervision under the time did and was not even on the hill at inspect patrol *28 testified that evidence was to the Its witnesses Valley’s contrary. Bear injury. was and the on which Vine was of snowboard jump jumps typical not to eliminate the risk of designed injury. could have been court, the course of in the trial defense counsel Throughout proceedings the the court to instruct the of urged jury primary assumption repeatedly as the trial court why Bear first contention on to risk.2 appeal to a erred the instructions it did is that it refused give in prejudicially giving an give of risk instruction. The trial court refused such primary assumption because, (1992) Cal.4th 313 Knight instruction under v. Jewett [11 R2d and its Kahn v. East Side (Knight) (e.g., Cal.Rptr.2d progeny 696] Union Dist. 31 Cal.4th 1003-1004 School High and 30]), of is a for the court question 75 P.3d risk assumption primary ante, 592). The the at recognizes (maj. opn., p. not the jury, majority court, not the that a defendant owes to the plaintiff, the determines jury, duty As the whether the defendant breached that duty. Knight and determines jury clear, in a such as activity other cases make a many participant sporting the inherent in the as a matter of law—that sport risks snowboarding accepts no for the jury of risk and primary presents question is Here, court deter- 3 Cal.4th at trial (Knight, supra, p. determine. the risks beyond mined that Bear was under a increase Valley duty As submitted to the that are inherent in the matter was snowboarding. those found that Bear had Valley Bear was liable if only jury, that a constructing those by negligently designing increased risks more than it to be. dangerous appeared Duty Against Inherent Risks of an entitled “No to Protect proffered instruction Risk),” duty to (Primary a read as follows: “The defendant has no Sport Assumption eliminate, the nature of the injury inherent risks of which arise from reduce or make safer the An it is conducted. inherent jumping snowboard or the manner in which sport recreational fundamentally changing the nature of sport a one cannot be eliminated without risk of is duty is a to use chilling sport, or in the The defendant under sport vigorous participation [f] in the to a over and above those inherent ordinary care not to increase risks snowboarder constructing public from for use duty under to refrain sport. defendant is which, duty such poses injury. A failure fulfill design, extreme risk of [][] negligence.”
The instructions that Bear Valley proffered subject primary the risk stated the correct rule of law. It is unquestionably correct that a has no to eliminate reduce “inherent defendant or which arise from the nature of recreational snowboard sport manner or the in which it conducted.” It is also jumping unquestionably instructions, counsel, true nothing in the court’s arguments anything else that was said the course of trial that there is during suggested While such it would have been advisable for the court duty. have told “not to explicitly only defendant’s increase obligation in risks to snowboarder over and above those inherent sport,” counsel,3 was made premise opening statements plain states, testimony closing argument.4 As the experts, majority “[tjhere was no trial that is a dispute snowboarding risky very sport” (maj. ante, 601) and there never the opn., suggestion slightest Valley was liable for Vine’s if those caused injuries were the risks injuries inherent to the statement snowboarding. Contrary majority opinion, the jury was not told to care “even ordinary standard of if Bear apply Valley’s conduct conformed to the standards in the ski resort customary *29 ante, industry.” 596.)5 at The that (Maj. opn., was told Bear p. jury Valley 3 statement, In his opening attorney jury, you Vine’s told the that question going “The are changed be asked Valley to deсide is: Once Bear that jump, they jump did take a that was safe statement, and dangerous turn it into one that was In opening Valley’s attorney . . . .” his Bear told jury the the evidence configuration jump would show that and the “[t]he of this risks of all, Vine, injury that presented open including it were and any obvious Ms. and that snow configuration you that craft out you there on the mountain . . . can’t the injury eliminate risk of control, somebody from body they who loses their and in particular upside when land down on their back and their shoulders and their neck. You can’t eliminate that.” 4 example, Valley’s attorney For Bear argued closing that Vine had “not satisfied the preponderance likely the evidence jump that it’s more than that here not created an injury excessive risk we opposed to what have to understand this same situation is a [j[] anybody risk of jump. from who falls on a So we that the jump contend [][]... design its and the evidence testimony presented only of its actual use and we’ve heard usual or expected jumping taking place. risks associated with the aerial that was That’s what rebuttal, we contend.” attorney argued, impact In Vine’s “Charlene equivalent Vine’s of 12 feet properly designed broke her back.... would jump subjected impact have Charlene Vine to [A] landed, point jump forces less than 3.7 feet at the she and properly if this was back, designed, regardless of whether on her she landed feet or on her she would not have injured. been - - jump. This (cid:127) There about that.” question was bad is no HD ISO 5 something negligence doing reasonably instructed that is the which a was do, prudent something reasonably not person prudent person would or the failure to do which a that, evidence,” although would do “under circumstances similar shown and to those not necessarily controlling, person evidence did not “as to whether conformed or conform to a grоwn up given locality ought custom that in a and had or business is relevant to be determining negligent. point considered” in whether the was At did person no trial anyone imply Valley injury may ever that Bear that simply was liable because it is foreseeable Indeed, counsel, jumping. argument result final from snowboard of Vine’s which the ante, 603), majority “legally (maj. have opn., p. emphasized believes to been erroneous” that injured by Valley somebody “screwup,” Bear if it was was liable foreseeable would be
(cid:127)» : <r 610 whether if it it was asked determine only negligent liable was
was construction, design, testing supervision” “negligent contention injured. throughout on which Vine was Vine’s of the jump rise designed gave and constructed because negligently encoun- that were not normally to excessive forces landing apparent evidence, what that is conflicting tered in Based snowboarding. the verdict have been There is no basis to would suppose found. had restated what was implicit throughout different if instructions trial. errone- that the instructions were
The second reason Bear contends In the obvious hazard doctrine. that the trial court refused to instruct on ous is trial, correctly rejects Vine relied at theory majority view of the on which ante, 11; also, Felmlee v. fh. see (Maj. e.g., this contention. opn., 158]; TV Falcon Cable [43 Mix 114—122 v. Mission Ready Cal.App.3d Osborn 457].) Cal.Rptr. is the trial court’s failure final attack on instructions to Knight, of risk.
give secondary According an instruction on assumption into secondary merged Cal.4th at risk “is page fact, scheme, the loss fault trier of apportioning the comparative responsibility from the consider the relative may resulting injury, counsel agreed In the issue with the trial defense judge, parties.” discussing by comparative risk “is secondary encompassed He argued and “is elements.” a component comparative negligence” *30 inherent thаt Vine for the that the should be told assumed jury responsibility the jury his that argument in connection with snowboarding only risks of of the risk. assumption should be instructed on primary needed to be essential what agreement counsel were in Opposing attorney of the risk. As Vine’s secondary assumption to establish shown risk, court, of the secondary matter to establish assumption to the presented a “would of actually type comparative have prove words, a recognizing actually. plaintiff negligent In other negligence [|] Secondary herself to that risk. and [accepted] bringing [][]... risk risk, the defendants I defendants could show .... think still assumption [i]f however, does, fact, inherent the sport, increase this say jump trial, not (italics added) By end of the there could by snowboarding. normal risks by counsel misunderstanding “screwup,” a slightest anybody’s part been the have greater landing normally than encountered constructing far forces jump produced a meant reasonably anticipated by most snowboarders. and knew that. plaintiff you You saw the this way You knew jump designed. that there awas risk of getting injured was not to the necessary sport, and you nonetheless took that would be jump, secondary assumption risk.” Defense counsel “There still remains agreed: which I component think did a [plaintiff’s pretty good job to the court explaining counsel] which is the secondary of risk which is a assumption subjective-based environment, analysis, that is in the . comparative negligence . . [f] determination, ... It is the negligence was the comparative H] Honor, contributorily I Your negligent. say, we’ve submitted instructions question which includes the comparative negligence secondary because, of risk assumption analysis again, [plaintiff’s is correct counsel] when he head, this is an says, that we analysis get inside Ms. Vine’s and we knew, find out what understood, she what she what appreciated, she and her forth, оf, willingness to venture in light or with knowingly forth venturing taking of her spite knowledge risk appreciation she is risk, to. exposed That’s secondary and he is correct It is a again. can comparative analysis. ascribe level or any percentage to the comparative plaintiff they choose to.” did offer two proposed instructions on the subject of secondary However, of risk.6 there was no basis in the evidence for either instruction. The instruction proposed which Bear upon Valley ultimately relied stated that in determining plaintiff’s comparative negligence, jury should consider “plaintiff’s knowing encounter with a risk of injury by caused breach” and failure to avert known “risk of harm defendant’s created breach duty.” (Italics added.) There was no defendant’s evidence that Vine was told or the additional perceived risk that created negligent configuration of the To the Vine testified jump. contrary, that she had unequivocally not observed anything unusual about the jump other than its and all length of her evidence was to the effect additional landing forces that were created were not apparent submitting After lengthier proposed “Comparative Negli instruction entitled Risk,” gence/Secondary Assumption of which included the statement person that “A who is aware of a risk of harm created defendant’s breach of but fails to avert the harm is comparatively *31 negligent injury,” for the submitted an alternative instruction read, “Comparative Negligence.” labeled That proposed you instruction “If find that defendant duty breached plaintiff, its of care to plaintiff’s knowing encounter with a risk of caused breach, by any, defendant’s if by you is to be considered determining plaintiff’s the comparative negligence person or fault. A by who is aware of a risk of harm created duty defendant’s breach of but comparatively negligent fails to avert the harm is injury, for the evidence, You should surrounding consider all of the by [f] circumstances established to, including, but not limited the plaintiff’s maturity, intelligence, experience capacity, and along surrounding with all the other by circumstances as shown the evidence.” other- no evidence suggesting the normal snowboarder. Bear offered It that there was unusual about the nothing jump. wise.7 Its position an that was not given have been error to have such instruction would University (LeMons Regents evidence in the record. by supported of of Cal. 582 P.2d 21 Cal.3d Rptr. 946] California [error there was have instruction for which given contributory negligence record].) no in the evidence the risk
In encounter with concluding Knight requires “plaintiff’s [to] the nature sense that the understood only ‘knowing’ general plaintiff ante, 599), at the majority opinion the risk involved” (maj. opn., p. by states is the risk must be correctly appreciated plaintiff “[i]t to come not the defendant’s breach risk doctrine into play, ante, 598). begs at But this statement (maj. question. duty” opn., p. is, makes that “in the what? clear Knight risk of question repeatedly context, risk it would be all impose responsibility improper a risk created on a who aware of of harm plaintiff defendant’s 310-311, deleted and . . . .” 3 Cal.4th at italics duty (Knight, breach pp. added.) “In of risk’—where involving ‘secondary assumption cases Again, the defendant does owe a care to but plaintiff, breach of to encounter a known risk defendant’s proceeds imposed (Id. into the fault . . . .” doctrine scheme duty—the merged comparative added.) italics instruction would have been p. proposed there were evidence that Vine had been aware that jump if any proper decided greater landing forces than usual nonetheless question produced ante, at acknowledges As the majority opinion (maj. opn., take the jump. to have 598), evidence. In order for such instruction there no such p. aware there no need for evidence Vine was been there was applicable, or for evidence design had been construction negligence aware to which the risks had been that she was of the precise degree aware that But she did need to be negligence. increased defendant’s differed ordinarily she from those voluntarily encountering the conditions to be activity. She needed encountered inherent in particular sporting or, as the aware of more than the normal risks of snowboard jumping it, herself in fall on the snow.” of “the risk injuring majority opinion puts ante, (Maj. opn., asked, Indeed, you anything didn’t that was you jump, looked at see when “When Gunnarson, it; experts, right?” one the defendant’s particularly hazardous about is that Chris of, confirmed, acknowledged, the normal risks of Vine was aware “That’s correct.” created aware of the increased risks but is no evidence that she was jumping, snowboard there designed question to have been negligent manner in which the found
and constructed.
To use the the we Bear may assume hypothetical employed by majority, Valley owed a to all snowboarders not in the landing to conceal spike of the there area If a snowboarder knows is a concealed jump. particular area and landing nonetheless takes snowboarder spike jump, assume some for of may virtue being injured spike by responsibility risk, secondary into element of incorporated compara- 314—315, Knight, (See, tive at supra, negligence. citing 3 Cal.4th e.g., pp. University Kirk State v. Washington Wn.2d 448 P.2d Diamond, Risk Assumption Comparative Negligence; 290-291] After into Integrating Theory Contract Tort Doctrine 52 Ohio St. L.J. 748-749.) The need of the snowboarder not be aware percentage by which hidden the risk of increases in order to assume that increased spike injury risk, but if there is no evidence that the knows she snowboarder spike, risk, does not assume that and it would be for the court to error give risk, LeMons comparative (See instruction. negligence, Regents University California, supra, Cal.3d p.
Bear contends that Valley judgment should be reversed because the trial court failed to an instruction that give Bear never Under proposed. Knight, be with plaintiff may charged comparative responsibility in a engaging even if risky activity so was not unreasonable (Knight, doing 3 Cal.4th 314) negligence instruction that the comparative However, trial court gave say did not so. Bear never asked the trial Indeed, court so. when say asked the trial judge BAJI why sufficient, instruction on negligence was not comparative Valley’s counsel “I think responded, instruction proposed [Bear important is] case, and an accurate Knight assessment law since the that helps what explain potential context. A plaintiff’s negligence knowing caused encounter with a risk of breach in this sports injury defendant’s (Italics environment here added.) is—is did comparative negligence.” Never defense counsel ask the trial court to instruct the could held for her partially because took a if responsible injury risky she even she so.8 negligent doing On Valley has discerned appeal, subtle from a Knight point reading close that was never suggested in court. trial Because is no suggestion there that the instructions that the trial law, court did give the trial negligence misstated court’s comparative 8 Indeed, suggested might defense proposed counsel his initial instruction be modified by inserting any” “if phrase “plaintiff’s knowing after the encounter with a risk of breach,” suggested caused but he defendant’s never that the instruction be revised to tell might knowing snowboarding plaintiff’s consider encounter with the risks inherent regardless negligence. *33 614 that not not may
failure to such a instruction was give clarifying requested of v. Johnson 25 (Agarwal form the basis for reversal the judgment. 932, 141, 58], P.2d different 603 overruled on Cal.Rptr. Cal.3d 948 [160 v. Ultramar 21 Cal.4th fn. White ground [88 that a on may P.2d is settled party complain Cal.Rptr.2d 944] [“It too or unless that an instruction correct in law is general incomplete appeal instruction”]; additional Suman v. BMW he had requested qualifying of America, (1994) 23 North Inc. 133] [“When is far as but a trial court a instruction which correct as jury goes gives evidence, to for the state of the a failure which is too or is general incomplete a a to right an additional or instruction will waive qualifying party’s request given”].) later on about the instruction which was complain appeal Moreover, have clarifica- the trial failure to made this judge’s unrequested resulted no The was on jury subject tion instructed prejudice. for and attributed 54.4 percent responsibility comparative negligence Vine There was no on which could jury Vine’s to herself. basis injuries having done than Vine for by finding responsible accepted have so other that inherent in snowboard One Vine’s own testified experts jumping. to have taken the on “very big Vine was “not enough” jump” experienced had she that she considered which was herself injured. acknowledged than she had ever done before. The bigger any jury whether take a jump major have that Vine bore the of responsibility must concluded portion that risk. 54.4 attributing her accident decided to take by having By percent Vine, her for her held necessarily of the responsibility jury she failed taking risky for the responsible consequences execute properly. attribution of negligence
The majority suggests jury’s comparative failure, correlated Vine’s considerable to Vine with “easily despite execute the fundamental jumping snowboarding experience, properly ante, 602), and that the have attributed might techniques” (maj. opn. been that it to her if it had told a still greater responsibility percentage to fault. regard also without very activity could consider riskiness forward and that her weight evidence that Vine’s was not was undisputed not as have been when she approached it should body positioning However, failure to execute the the defense did not Vine’s argue jump. on her contended constituted negligence part. jump properly is of the inherent risk correctly the risk of not part approaching jump unreason- who makes a not that snowboarder snowboarding, poor statement, “A counsel told the jury, In his defense opening able or negligent. control. And body is loss of fundamental risk snowboard jumping] [of it is a base knowledge anybody’s part, just doesn’t require any subjective if can’t aerial you nature of activity jumping, element. The control, And I it is an essential risk activity. eliminate then body loss think that the evidence will show that that’s what here.” The happened substantial that the attributed proportion responsibility to Vine was not based on the determination that she was execute negligent failing better but that she jump, because she assumed the responsible risk that she might not take the jump correctly. *34 contended Valley that manner in which Vine took the went jump
to the issue of causation. It that argued Vine’s were not caused injuries by any negligence in the design construction of the but form jump poor with which Vine took the The jump. jury considered undoubtedly Vine’s faulty in her technique determining proportionate her responsibility causing and it injury, did so the fact there despite was never that any suggestion acted or that her unreasonably form constituted poor Since the negligence. could jury have considered Vine’s contribution to the causation of her injury only fault, after determining she was for some reason at must jury have placed on her for responsibility assumed the having risk of taking snowboard jump.
The majority opinion posits attributed possibility jury fault to Vine based on her However, improper snowboarding as technique. just indicated, the defense never argued that the jury should do so. The suggestion that the jury may nonetheless have considered Vine’s poor form to constitute negligence only entirely but speculative, the fact that Bear disregards did argue Vine’s showed poor technique simply why injury Vine’s was not And, caused configuration as jump. majority ante, opinion acknowledges (maj. opn., 601), in his closing argument Vine’s did attorney to convince the that it attempt jury should not attribute to Vine negligence because she that she attempted should have known jump her beyond ability. Vine’s did not attorney that this was an argue factor inappropriate for the jury consider or suggest if Vine was as the result of taking that was her she bore beyond ability no for so. If under responsibility doing the trial court’s instructions the jury found that Vine risk, negligent with attempting its inherent did, there would apparently have been no reason for it to have increased of fault apportionment to her if it had been told that she was for responsible that same taking risk even if she were not so. negligent doing Thus, there is no reason absolutely to believe that the result in this case would have been different if the had been told that Vine could be contributorily for even if she acted responsible reasonably. verdict that the reflects understood this to be the plainly case—which court to such give explicit asked the trial never is why perhaps court’s failure events, from the trial no resulted In all prejudice instruction. never requested a manner that was subject more fully instruct either party. and respondent’s denied June rehearing
A for petition 25, 2004. denied August Court was review Supreme petition J., J., Chin, that the Kennard, J., petition were of the opinion Werdegar, should be granted.