Recreation and the Law

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Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.

It does not require a finding that the bodily injury was caused by participation in the event. We agree with the reasoning of the federal district court for the Western District of Kentucky, which addressed a factually-similar situation involving a student who collapsed and died while practicing for his college lacrosse team. The policy specifically excludes bodily injury while engaged in athletic or sports activities. Passfield [the student] was engaged in such an activity at the time of the injury.

While the Court liberally construes insurance policies in favor of the insured, the Court also strictly construes exclusions. This is an instance of the latter. Similarly, in the case before us, the exclusion applies specifically to bodily injury while participating in the Extreme Rampage. The exclusion does not require a causal link between the participation and the injury to apply.

Do the two exclusions create an ambiguity in the policy. Johnson further argues that the two exclusions create an ambiguity in the policy when read in conjunction with two coverage endorsements. Oakley , S. Assad , S. Tackett , S. Weinberg , S. We recognize that the hearing on August 25, , at which this issue may have been argued before the trial court, was not recorded.

Thompson , S.

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Dismissal of all claims against Capitol. Finally, Arnold argues that the trial court erred in dismissing all causes of action against Capitol. Arnold contends that the arguments before the trial court only concerned the applicability of the insurance policy, but never addressed the additional allegations in the complaint of negligence, consumer protection, unfair claims settlement practices, and fraud. Under these circumstances, the trial court did not err in dismissing all claims against Capitol. For the foregoing reasons, the order of the Fayette Circuit Court granting summary declaratory judgment to Capitol is affirmed.

Ski Area , LLC. June 27, , Opinion Filed. Ordered published by, Reported at Willhide-Michiulis v. They also assert the trial court improperly denied their motion to transfer venue to Los Angeles County. We conclude the trial court did not abuse its discretion by excluding the expert declarations. Mammoth owns and operates one of the largest snowcat fleets in the United States to groom snow and maintain snow runs throughout Mammoth Mountain Ski Area.

A snowcat is a large snow-grooming vehicle — 30 feet long and 18 feet wide. It has five wheels on each side of the vehicle that are enclosed in a track. In front of the snowcat is a plow extending the width of the snowcat. In back is a foot wide trailer containing a tiller. The guide further directs drivers not to operate the tiller if anyone is within 50 feet or if on a snow run open to the public.

Although the grooming guide directs drivers not to use the tiller on snow runs open to the public, there are exceptions to these rules. Snowcats use two large tracks, instead of wheels, to travel on the snow. In fact, it is common for skiers and snowboarders to chase snowcats that operate on public snow runs. For example, Taylor Lester, a Mammoth season-pass holder, has seen snowcats with tillers operate on snow runs open to the public. She, her friends, and her family, commonly ride close behind these snowcats so they can take advantage of the freshly tilled snow the snowcats produce.

There is a blind spot in the snowcat created by the roll cage in the cab of the vehicle. This blind spot is mitigated by the driver using the mirrors of the snowcat and turning his or her head to look out the windows. Snowcats are also equipped with turn signals. Mammoth also includes these warnings in trail maps. Less than an hour before her call, the employee had been driving her snowmobile on the unmarked service road and got it stuck in the snow. She called for assistance and she and another Mammoth employee dug out the snowmobile.

Once the machine had been dug out of the snow, there was too big of a hole for her and her coworker to fill in. They decided to call Mann to have him fill in the hole with the snowcat because it was near the end of the day and the hole was a safety hazard for all other snowmobiles that would use the service road at closing. Mann agreed and drove his snowcat with the tiller running to Old Boneyard Road, which branched off of the bottom of mambo snow run. It was a clear day and Willhide-Michiulis and her brother split up after getting off the chair lift.

Willhide-Michiulis hit the back left corner of the snowcat and her board went into the gap between the tracks of the snowcat and the tiller. Mann did not use a turn signal before initiating the turn onto Old Boneyard Road. The snowcat did not have a speedometer, but Mann thought he was going less than 10 miles an hour.

Mann got out of the snowcat and lifted the protective flap to look under the tiller. He saw Willhide-Michiulis stuck in the tiller and called for help. When help arrived, it took 30 minutes to remove Willhide-Michiulis from the tiller. She suffered a near-complete amputation of her left leg above the knee, which doctors amputated in a subsequent surgery. Her right leg sustained multiple fractures and lacerations, and she dislocated her right hip.

Plaintiffs initially filed suit against Mammoth and Kassbohrer All Terrain Vehicles, the manufacturer of the snowcat and tiller, in Los Angeles County. Venue was later transferred to Mono County, where the trial court dismissed multiple causes of action pertaining to Mammoth. It appears that the collision occurred as the snowcat operator was negotiating a left turn from the run to the service road.

Because plaintiffs could not show gross negligence , the waiver of liability they signed as part of their season-pass agreement barred recovery. Squaw Valley Ski Corp. The snowcat is equally obvious when it is moving as when it is stationary. In forming his opinions, Deyerl inspected the snow run and snowcat equipment and relied on photographs and various accounts of the incident.

Deyerl believed that before initiating his turn, Mann failed to activate his turn signal, monitor his surroundings, and verify that he was clear — especially in the blind spot at the back left portion of the snowcat. No signs indicated the existence of Old Boneyard Road, and skiers like Willhide-Michiulis would not know to expect a snowcat to stop and turn from the middle of the snow run. Mammoth lodged both general and specific objections to these declarations.

Take four hours or at least four pieces of litter and put them in the trash.

Specifically, Mammoth objected to several paragraphs of material on predominantly the same grounds. Davidson Cal. Because the express assumption of risk in the release applies, we need not consider the implied assumption of risk argument also advanced by plaintiffs. Bear Valley Ski Co.

Santa Clara County Fair Assn. Specifically, plaintiffs argue expert testimony was appropriate under Kahn v. In Kahn , the plaintiff was a year-old member of a school swim team who broke her neck after diving in shallow water. Minutes before a meet, however, the coach told the plaintiff she would have to dive and threatened to kick her off the team if she refused. With the help of some teammates, the plaintiff tried a few practice dives but broke her neck on the third try.

She sued based on negligent supervision and training. The court determined the case could not be resolved on summary judgment as there was conflicting evidence whether the coach had provided any instruction or, if so, whether that instruction followed the recommended training sequence, and whether plaintiff was threatened into diving.

The court concluded the trial court was not compelled to disregard the opinions of a water safety instructor about the proper training a swimmer requires before attempting a racing dive in shallow water. While stating that Mann and Mammoth violated industry standards and increased the potential for collision, no expert outlined what the industry standards were for operating a snowcat and thus provided no context for the trial court to determine the legal question of duty.

Kahn , at pp. The declarations here merely repeated the facts contained in the discovery materials and concluded the risk of injury and collision was increased because of those facts. Towns, supra , Cal. In Towns , the plaintiff sued the defendant after he collided with her on a ski run. The trial court excluded the declaration in its entirety and granted the motion for summary judgment. Thus, the trial court was deciding the issue of recklessness as a matter of law. Summary Judgment Was Proper. Advanced Group 25 Cal.

Once the defendant has made the required showing, the burden shifts back to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or defense. Nunnink Cal. Express assumption of risk agreements are analogous to the implied primary assumption of risk doctrine. Jewett 3 Cal. Los Angeles Harley-Davidson, Inc. Generally, in cases involving an express assumption of risk there is no cause to analyze the activity the complaining party is involved in or the relationship of the parties to that activity.

Five Brooks Stable Cal. A release cannot absolve a party from liability for gross negligence. City of Santa Barbara v. Superior Court 41 Cal.

These allegations are insufficient to support a finding of gross negligence. Superior Court , supra , 41 Cal. Jewett, supra , 3 Cal. Thus, in cases involving a waiver of liability for future negligence , courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence , which would not be barred by a release agreement.

Numerous cases have pondered the factual question of whether various ski resorts have increased the inherent risks of skiing or snowboarding. Mammoth Mountain Ski Area 39 Cal. North Cal. Plaintiffs argue the above language is simply dicta and no authority has ever held that colliding with snow-grooming equipment is an inherent risk in snowboarding or skiing.

Because there is no authority specifically addressing the inherent risk of snow-grooming equipment, plaintiffs argue, colliding with a snowcat is not an inherent risk of snowboarding. Further, even if it were, Mammoth increased the inherent risk of snowboarding by operating a snowcat and tiller on an open run.

Moreover, common law holds that collisions with snow-grooming equipment are an inherent risk of skiing and snowboarding. In Connelly , the plaintiff collided with an unpadded ski lift tower while skiing. Mammoth Mountain Ski Area , supra , 39 Cal. In affirming summary judgment for the defendant, the court found this risk was inherent in the sport and the obvious danger of the tower served as its own warning.

In concluding that contact with the tower was an inherent risk of the sport, the Connelly court relied on Danieley v. Goldmine Ski Associates, Inc. Connelly , at p. In Danieley , a skier collided with a tree. Danieley , at p. Although there may not be a published case specifically addressing the inherent risk of snowcats to skiers and snowboarders, a snowcat, otherwise known as snow-grooming equipment, is one of the risks explicitly adopted as California common law by the Danieley and Connelly courts.

Thus, in California, colliding with snow-grooming equipment is an inherent risk of the sport of snowboarding. Nevertheless, plaintiffs argue operating the tiller of the snowcat on an open snow run increased the inherent risk snowcats pose to snowboarders. We recognize assumption of the risk, either express or implied, applies only to risks that are necessary to the sport.

In Souza , a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run. Following Connelly , we affirmed summary judgment for the defendant, finding the snowmaking hydrant was visible and a collision with it was an inherent risk of skiing. Souza , at pp.

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This would effectively emasculate the doctrine,. Snow-grooming equipment, including the snowcat and tiller at issue here, are necessary to the sport of snowboarding because the snowcat grooms the snow needed for snowboarding into a skiable surface. Without the tiller also grooming the snow, the snowcat leaves behind an unusable and unsafe surface riddled with berms and holes. Given the purpose of the snowcat and tiller, it cannot be said that they are not inherent and necessary to the sport of snowboarding. The fact that the snowcat and tiller Willhide-Michiulis collided with was operating during business hours and on an open run does not affect our analysis.

Out of the 10 years she has been a season-pass holder, Lester had seen snowcats operating during business hours at Mammoth 20 to 40 times, half of which had been using their tillers. In fact, Lester testified that it was common for her and her friends, and also her sister and father, to ride close behind snowcats that were tilling so that they could take advantage of the freshly tilled snow the snowcats produced.

Given this testimony, we conclude that the use of snowcats and their tillers on ski runs during business hours is inherent to the sport of snowboarding , the use of which does not unreasonably increase the risks associated with the sport. To find Mammoth liable because it operated a snowcat and tiller during business hours would inhibit the vigorous participation in the sport Lester and her sister testified about. Instead of racing to freshly tilled snow to take advantage of its unspoiled status, snowboarders and skiers alike would be prohibited from chasing snowcats and instead have to settle for inferior skiing conditions.

Here, Mammoth did warn plaintiffs of the presence of snowcats and other snow-grooming equipment at the ski resort. At the top and bottom of every chair lift, Mammoth posts signs warning of the presence of snowcats throughout the resort and on snow runs. Mammoth also included these warnings in its trail maps. Not only were plaintiffs warned about the possible presence of snow-grooming equipment throughout the ski resort, but Willhide-Michiulis was warned of the presence of the specific snowcat she collided with.

Before going down the mambo run to fix the pothole on Old Boneyard Road, Mann turned on the safety beacon, warning lights, and audible alarm to the snowcat. Although she claims the snowcat cut off her path, the snowcat was traveling less than ten miles an hour before standing nearly motionless while turning onto Old Boneyard Road downhill from Willhide-Michiulis. Because Mammoth met its initial burden, plaintiffs now have the burden to show that a triable issue of fact exists. Plaintiffs argue that one does exist because the way Mann drove the snowcat at the time of the collision was grossly negligent.

City of Imperial Beach Cal. Where the evidence on summary judgment fails to demonstrate a triable issue of material fact, the existence of gross negligence can be resolved as a matter of law. We conclude it does not. Mammoth warned plaintiffs of the possible presence of snow-grooming equipment in its season-pass contracts, trail maps, and throughout the ski resort. He also testified he did not drive the snowcat faster than ten miles an hour while on mambo and was traveling even slower during the turn. This fact was confirmed by Lester.

Evidence of conduct that evinces an extreme departure from safety directions or an industry standard could demonstrate gross negligence. Conversely, conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence. State of California Cal. To illustrate this point, plaintiffs cite two cases. First, they rely on Jimenez. In Jimenez , one of the plaintiffs was injured when she fell backwards off of a moving treadmill and hit her head on an exercise machine that was approximately four feet behind the treadmill. The caution flagger, who was supposed to have staffed the platform to alert riders to the presence of fallen cyclists, was not on duty when plaintiff fell.

The court found the release plaintiff signed unenforceable against a claim of gross negligence. It noted the dangerous nature of the sport, and also found a specific duty on the part of the course operator to provide some form of warning system such as the presence of caution flaggers. Also, the course owner had a safety manual requiring flaggers to stay at their stations whenever riders were on the course, and expert testimony was presented that caution flaggers were required at all such times.

First, unlike Jimenez and Rosencrans , plaintiffs presented no expert evidence regarding the safety standards applicable to snowcat drivers. And second, plaintiffs did not produce evidence showing that Mammoth failed to take any safety precautions required by company safety policies. Instead, the experts merely provided their opinions that Mammoth and Mann failed to guard from or warn of the dangerous condition the snowcat and tiller posed. This is insufficient for a showing of gross negligence. State of California, supra , Cal.

Here, there was extremely heavy snow and a hazardous condition requiring Mann to drive a snowcat on public snow runs. Further, the guide instructs snowcat drivers to travel on a groomed snow run instead of on ungroomed snow on either side of the run. This is because ungroomed snow is made of unstable soft snow that cannot support the weight of a snowcat.

Plaintiffs contend the trial court abused its discretion when denying their motion to transfer venue to Los Angeles County where they initially filed their suit. Specifically, plaintiffs argue their motion should have been granted because it was more convenient for the parties and their witnesses to have trial in Los Angeles County and because plaintiffs could not receive a fair trial in Mono County.

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This is because without first showing that their case is active and trial is pending, plaintiffs cannot show a miscarriage of justice resulting from the denial of their venue motion. State of California 74 Cal. Thus, even if the venue motion should have been granted and venue transferred to Los Angeles for trial, there is no trial to be had. The judgment is affirmed.

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Costs are awarded to defendants. Rule of Court, rule 8. Outdoor Retailer is both a barometer and an education in the outdoor recreation industry. New clients can easily set up a conference call. Simply click on this link: Want a Job Working on the River? September 18, Author: The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. September 17, Author: Ski Area , Mammoth Mt.

Assumption of the risk and release Holding: Facts The injury suffered by the plaintiff and how it occurred is gruesome. The accident resulted in the amputation of her left leg, several skull fractures and facial lacerations, among other serious injuries The plaintiff was snowboarding on her last run of the night.

Copyright Recreation Law If you like this let your friends know or post it on FB, Twitter or LinkedIn If you are interested in having me write your release, fill out this Information Form and Contract and send it to me. September 15, Author: World CleanUp Day Date: Thank you for all you do to make the world a better place! National CleanUp Day Date: The avalanches in each cycle failed on the facet layer that developed during the early-season drought The first fatality of the season occurred right after the mid-January storm in the San Juan Mountains near Silverton.

September 12, Author: Exclusions in insurance contracts are to be narrowly interpreted and all questions resolved in favor of the insured. The applicability of the concurrent proximate cause doctrine Johnson argues that even if the policy exclusions apply, the concurrent proximate cause doctrine provides coverage under the policy. The doctrine holds that Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy.

Do the two exclusions create an ambiguity in the policy Johnson further argues that the two exclusions create an ambiguity in the policy when read in conjunction with two coverage endorsements. II Venue Plaintiffs contend the trial court abused its discretion when denying their motion to transfer venue to Los Angeles County where they initially filed their suit.

James Moss JD, Author. Enter your email address to follow this blog and receive notifications of new posts by email. Join 4, other followers. If you want to book an appointment? Skip to main content. Non-subscribers can purchase individual Cases or access to the entire Case Library Purchase a Subscription Keep focused on Current Legal Issues Recreation Law Center subscribers have full access to the complete library of outdoor recreation case law studies focusing on critical legal issues with commentary and take away points written by Reb Gregg and Catherine Hansen-Stamp.

Are your Records Protected? Use of Volunteer Leaders—Are you asking for Help Maybe Not Employee or Independent Contractor? The Difference Really Matters! Duty to Supervise or Assumption of Risks? Negligence as an Inherent Risk? Is Your Organization Prepared? Are you offering a Product or a Service? Who Thought They Could? Insurance—Are You Really Covered?

Reb Gregg Reb is a practicing attorney in Houston, Texas, specializing in issues of outdoor recreation and education law.

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