Issue by: N. Zeke Rivera
Kathleen Willhide-Michiulis et al. v. Mammoth Mountain Ski Area, LLC
Third Appellate District (July 18, 2018)

Plaintiff Kathleen Willhide-Michiulis was seriously injured in a snowboarding accident when she collided with snow-grooming equipment at Mammoth Mountain Ski Area. Plaintiff sued Mammoth in Los Angeles County, arguing that it has been grossly negligent. The trial court granted Mammoth’s Motion for Summary Judgment, and Plaintiff appealed.

First, the appellate court ruled that the trial court properly excluded Plaintiff’s expert declarations because they contained inadmissible legal conclusions. “Although the expert’s testimony may embrace an ultimate factual issue, it may not contain legal conclusions.” In this case, Plaintiff’s expert declarations merely repeated the facts and concluded the risk of injury and collision was increased because of those facts. Plaintiff’s expert declarations needed to outline the customary practices and industry standards Mammoth allegedly violated when operating snow-grooming equipment. Since they did not do so, the expert declarations were properly excluded.

Second, the appellate court found no duty because Mammoth was not grossly negligent. A release of liability cannot absolve a party from liability for gross negligence. However, “To support a theory of ‘gross negligence,’ a plaintiff must allege facts showing either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’” The nature of a sport is highly relevant in defining the duty of care owed by a defendant. “[I]t would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation . . . .”

Plaintiff had a season-pass agreement with Mammoth which contained a release absolving Mammoth from liability. By signing the agreement, Plaintiff acknowledged that skiing included a risk of colliding with snow-grooming equipment.

California law recognizes colliding with snow-grooming equipment as an inherent risk of skiing and snowboarding. Snow-grooming equipment is necessary and inherent to snowboarding because the equipment grooms snow into a skiable surface. Although the equipment was used during business hours, this did not unreasonably increase any risk associated with snowboarding because people could not snowboard unless the equipment converted snow into a skiable surface. Mammoth had provided customers with sufficient warnings of the use of snow-grooming equipment during business hours. Mammoth had warned of the possible presence of snow-grooming equipment in its season-pass, trail maps, and posted warning signs throughout the ski resort and on snow runs.

The appellate court reasoned that Plaintiff was sufficiently warned of the presence of the snow-grooming equipment with which she collided because the employee operating the equipment turned on warning lights, a safety beacon, an audible alarm, constantly looked for skiers and snowboarders, and did not drive faster than ten miles an hour. The equipment was also large, bright red, slow-moving, and Plaintiff saw it about 150 feet before she crashed into it. Given these safety precautions, Mammoth’s employee’s conduct did not constitute a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.”

The appellate court concluded that Mammoth did not violate any safety policies because Plaintiff’s expert declarations did not outline any customary practices or industry standards that were allegedly violated. Mammoth also did not violate its own snow-grooming guide because the guide allowed the use of snow-grooming equipment during periods of extremely heavy snow. Since there was extremely heavy snow and a hazardous condition on the day Plaintiff was injured, Mammoth was permitted to operate its equipment during public snow runs.

COMMENT

This case establishes that (1) expert declarations opposing a motion for summary judgment on the issue of duty must outline customary practices and industry standards that were allegedly violated, (2) expert declarations in connection with summary judgment motions cannot merely recite legal conclusions, and (3) in cases where a defendant is sued for gross negligence, a release agreement will not absolve a defendant from liability unless the defendant proves it was not grossly negligent.

For a copy of the complete decision, see: Mammoth Case

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