The legal defense of “Primary Assumption of Risk,” particularly as it applies to skiing and snowboarding, is under attack in California.

Under the Primary Assumption of Risk defense, a ski resort has no duty at all to a plaintiff for any injuries that occur while skiing or snowboarding on the resort premises.

However, in a recent decision the Fourth Appellate District Court of Appeal in California reversed the lower trial court’s summary judgment in favor of Bear Mountain Ski Resort in California (Van Dyke v. S.K.I. Ltd. et al., 1998 Daily Journal D.A. R. 12001, Nov. 25, 1998).

Now, not only has the case been sent back to the lower trial court for further proceedings, this ruling places in doubt the certainty that ski resorts can rely on “primary assumption of risk” as a shield from liability for skier and snowboarder injuries.

The Case

In this case, plaintiff John Van Dyke struck a signpost while skiing at Bear Mountain. Tragically, this resulted in the fracture of his spine which rendered him a paraplegic.

Ironically, the sign read “Be Aware–Ski With Care.”

The lower trial court granted summary judgment in favor of Bear, ruling that as a matter of law the signpost was a risk inherent to the sport, and that the post was open and unobstructed. Therefore, it was part of the “primary assumption of the risk” of the sport of skiing.

The appellate court, however, cited several earlier opinions, including the California Supreme Court case of Knight v. Jewett, where the Supreme Court stated, ” … it is well established that defendants generally do have a duty to use due care not to increase the risks inherent in the sport.”

The appellate court then distinguished this case as follows: “Unlike a ski-lift tower which is wide and equally visible from all angles, the sign Van Dyke hit had about an eight and one-half inch profile–including the foam wrapping.”

Because Van Dyke approached from the side as he crossed the run, he could not see the face of the sign. As a result, the appellate court held that this directional sign and its placement were not an inherent risk associated with the sport of skiing.

The effect of the court’s ruling is that a ski resort is not necessarily protected if by an affirmative act it significantly increases the risk of harm.

In addition, the appellate court found that reasonable efforts by the defendant to make the directional signs safer would have no negative impact on the sport.

Among the ways directional signs could be made safer, the following were stated in the court’s opinion: “Locate the signs either on the uphill side of the run or off to the side where skiers are less likely to pass through on a steep decline; attach the sign to the lift-tower; use a foam ‘breakaway’ post instead of a wood or metal one; and enhance visibility by affixing bright colors such as yellow, red, or orange to the post.”

The appellate court also commented that the cases Bear relied upon in its defense involved injuries caused by a natural feature of the terrain such as a ravine bordering a tree-lined ski run or a ski-lift tower in a ski run plainly visible from 200 yards.

–William E. Maguire