Law Review: Heavenly Resort liable for runaway rescue sled?
November 2, 2018
Accidents happen. Sometimes they happen in our backyard – like Heavenly Resort at South Lake Tahoe. Teresa Martine was skiing down Powder Bowl when her kneecap "moved out and back in." She called for ski patrol.
Volunteer ski patroller Gus Horn arrived on the scene and conducted an assessment of Martine's injuries, and called for a toboggan.
Using his extensive training as a 28-year patrolman, Horn stabilized Martine, wrapped her in a blanket, strapped her in with her skis and began skiing down the Lower Mombo run. You know this is not going to end well.
HE SAID, SHE SAID
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Heavenly's version is that Horn was skiing down with the toboggan when a snowboarder clipped his right ski causing him to fall and the toboggan to fall over. That's the He Said.
The She Said was that Horn lost control of the sled because he was going too fast and fell, and the toboggan didn't just tumble, it rolled over, out of control hitting a tree causing serious damages.
Based on those facts, have you formed an opinion on who will win this case?
ASSUMPTION OF THE RISK
Martine sued claiming Heavenly was negligent given Horn's failure to maintain control of the emergency sled.
Heavenly defended claiming it was not negligent, Horn had done nothing wrong, and by choosing to ski, Martine had assumed the risk of injuries inherent in the sport, including an incident in a rescue sled, i.e. she should recover nothing.
The trial court ruled for Heavenly. Martine appealed to the Third District Court of Appeal in Sacramento.
RISK IN A RESCUE SLED?
The Court of Appeal, Justices Blease, Hull and Robie, a stellar panel, ruled "the possibility that Martine might injure herself while skiing and need assistance descending the mountain is one of the foreseeable risks of the sport of skiing. That one might be injured during that descent on a rescue toboggan are risks inherent in the sport of skiing."
Other cases cataloging and confirming the risks inherent in snow skiing include: skiing on icy conditions and on bare spots, collisions with other skiers and with ski lift towers and properly marked or plainly visible equipment, and as we reported in August of this year, a boarder's collision with a snowcat in the middle of a ski run.
COMMON CARRIER ARGUMENT
Martine and her lawyer, who is local, came up with the clever argument that Horn and Heavenly were "common carriers" in the business of running a transportation service which is essentially like a bus, train or ski lift operation. Common carriers owe a duty of "utmost care," a very high standard of care which Martine hoped to prove was not met.
The Court of Appeal concluded that while Heavenly might be a common carrier for its ski lift operations its "rescue sled operated by ski patrol is distinguishable." Horn was not paid and was not in the business of transporting passengers.
Summary Judgment granted for Heavenly Ski Resort.
Once again, congratulations to Heavenly's Truckee lawyers of the Duane Morris law firm.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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