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DID THE PROPERTY OWNER INCREASE THE RISK? JUDGE STUMPS PLAINTIFFS

A California couple recently found out that their case for negligence against a ski resort was thrown out of court in Wyoming, where the incident occurred.  Their case against the Jackson Hole Mountain Resort involved similar issues of assumption of risk and premises liability that face plaintiffs here in California.  In January 2017, while skiing “off-piste” in the more rugged resort terrain, which apparently is not maintained with equipment, the male skier collided with the top of a tree stump that was covered in 6.5 feet of snow.  The man sustained catastrophic injuries from which he continues to suffer.

A massive snow dump of approximately 45 inches had taken place over the course of the four days before the injury occurred.  The ski passes purchased by the couple also included a disclaimer or waiver, requiring the couple to accept the risks and hazards inherent to the activities.

The Court agreed with the defendant resort that the skier’s injury resulted from an “inherent risk” of the activity, since tree stumps are routinely rendered invisible by fresh snow.  The Court of Appeal agreed.

The same types of defenses of assumption of inherent risk and waiver would have been raised should the State of California had jurisdiction.

[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage.” ’ 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.” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 359[235 Cal.Rptr.3d 716

A written release may exculpate a tortfeasor from future negligence or misconduct. [Citation.] To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’[Citation.] The release need not achieve perfection. [Citation.]” ’ (Huverserian v.Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1467 [110 Cal.Rptr.3d112], original italics, internal citations omitted.)

Because of the intricacies of the law, it is extremely critical that someone who is catastrophically injured while enjoying recreational activities consult with a well-qualified, experienced attorney with decades of success such as the attorneys at our office.  Give us a call to see if we can help you today!

Ms. Morgan obtained her Juris Doctor from Chapman University School of Law in Orange, California. She contributes to the improvement of both the local and legal communities, having provided pro- and low-bono legal services, and volunteering at legal clinics and other programs serving the community. View Attorney Sara Morgan's Attorney Bio Here.

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