ALVIN KIN v. JOHN SUN, ET AL.
Case No.: 1-14-CV-259665
DATE: February 5, 2015
TIME: 9:00 a.m.
DEPT.: 7

The Court has before it two separate motions for summary judgment. The pleadings limit the issues presented for summary judgment, and the motion may not be granted or denied on issues not raised by the pleadings. See Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4th 60, 73 (“the pleadings determine the scope of relevant issues on a summary judgment motion.”). The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; McClasky v. California State Auto. Ass’n (2010) 189 Cal App 4th 947, 975 (“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.

The opposing party may be bound by admissions made in deposition testimony or in response to written discovery. “[I]n opposing a summary judgment motion, a plaintiff may not create a disputed issue of fact by contradicting his or her deposition testimony with an affidavit or declaration.” Jogani v. Jogani (2006) 141 Cal App 4th 158, 177. “In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony.” Scalf v. D.B. Lodge Homes, Inc. (2005) 128 Cal App 4th 1510, 1522.

Both moving Defendants here seek summary judgment on the ground that the primary assumption of the risk doctrine provides them a complete defense to Plaintiff’s sole cause of action for general negligence. The principles of the doctrine and its application in published decisions, including decisions involving minor skiers and holding that falls or collisions caused by icy snow are among the inherent risks of snow skiing, were set forth in the prior order of the Court (Hon. Lucas) granting summary judgment to Defendant Johnson Kin. The prior order was issued almost a month before the oppositions to the present motions were filed yet Plaintiff does not address the order, the cases cited in it, or the application of those decisions to the facts of the present case.

Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. Applied in the sporting context, it precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. Under this duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. Co-participants have a duty not to act recklessly, outside the bounds of the sport, and coaches and instructors have a duty not to increase the risks inherent in sports participation. A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is totally outside the range of the ordinary activity involved in teaching or coaching the sport. The legal question of duty, and specifically the question of whether a particular risk is an inherent part of a sport, is necessarily reached from the common knowledge of judges, and not the opinions of experts. Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal App 4th 251, 257.

As the prior order noted: “Snow skiing is a sport that involves certain inherent risks,” e.g., “injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; . . . collisions with ski lift towers and their components, . . . or with properly marked or plainly visible snow-making or snow-grooming equipment.” Connelly v. Mammoth Mountain Ski Area (1994) 39 Cal App 4th 8, 12; See also Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 596 (“Vine”) (in a sports setting such as skiing, “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.”) “The challenge and fun of the sport consists largely in the skier’s skill in encountering such conditions.” Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367 (“Allan”). Falling or being injured or killed are inherent risks in skiing. Id. In addition, where a student decides to learn to ski, he or she voluntarily bears the risks inherent with taking on new challenges in an effort to improve his or her skills. Id. at 1370-1371. “[A] skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another for simple negligence.” Cheong v. Antablin (1997) 16 Cal 4th 1063, 1065.

The doctrine is applicable to a child skier who sustains an injury from an inherent risk of skiing. See Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 264 (“a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run”; the appellate court affirmed the trial court’s order “grant[ing] summary judgment to the ski resort and the hydrant distributor, deeming the collision an inherent risk of skiing under the primary assumption of risk doctrine.”) “[T]his court has listed the risks inherent in snow skiing on more than one occasion. ‘‘Each person who participates in the sport of [snow] skiing accepts the dangers that inhere in the sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.’’” Id. at 266-267, internal quotations and italics omitted, brackets in original.

Defendant Gordon Kin’s Motion for Summary Judgment is GRANTED.

The facts and evidence in this case place it squarely within the holdings of the Connelly, Vine, Allan, Cheong and Souza decisions. “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk does bar recovery because no duty of care is owed as to such risks.” Connelly, supra, at 11. It is well established that primary assumption of the risk applies to a minor’s voluntary participation in a sport or recreational activity. Plaintiff’s age is irrelevant to the analysis. It is undisputed that Plaintiff was a voluntary participant in the activity; he wanted to go skiing and he wanted to try a blue slope during the trip, he was not forced or ordered to do so by his Father Gordon Kin or the other Defendants. It is undisputed that Plaintiff had skied before (with his Mother, Angela Ying, who did not require him to take further lessons with instructors after Dec. 2011) and understood its inherent risks (even though his subjective knowledge is irrelevant). It is undisputed that he had the necessary equipment in good working order. It is undisputed that Plaintiff testified that his collision was caused not by the steepness of the slope or by his level of proficiency but by the snow conditions; an inherent risk of skiing. It is further undisputed that Gordon Kin was not present on the slope when the collision occurred and that Plaintiff was accompanied to the slope by two adult skiers who had more experience than Gordon Kin, Defendant John Sun and Defendant Johnson Kin (whom the Court has already ruled has a complete defense based on Plaintiff’s primary assumption of the risk). All of this is established by admissible evidence: the deposition testimony of Plaintiff, his mother Angela Ying and that of Defendant Gordon Kin submitted by Defendant as exhibits A, B and C to the Declaration of Jon Heaberlin. This is sufficient to meet Defendant Gordon Kin’s initial burden to establish a complete defense to the Negligence claim.

When the burden shifts to Plaintiff he is unable to raise any triable issues of material fact as to the affirmative defense. The Court notes that Plaintiff did not dispute any of Gordon Kin’s undisputed material facts. To the extent the opposing declarations submitted by Plaintiff and Angela Ying are inconsistent with or attempt to contradict their deposition testimony, the declarations are disregarded. Plaintiff concedes that Gordon Kin was not present on the slope and could not qualify as a co-participant or instructor (in fact Plaintiff had more experience skiing than Gordon Kin did). Therefore there can be no triable issue as to whether Gordon Kin acted recklessly or with intent to harm while participating in the activity. Plaintiff also does not dispute that he told his father that he wanted to ski a blue slope; Gordon Kin did not initiate the idea or instruct his son to go down the blue slope. Accordingly Gordon Kin cannot be considered a coach or instructor. Even if he could be it is well established that assessment errors by coaches or instructors are covered by the primary assumption of the risk doctrine.

Plaintiff’s reliance on the decision in Kahn v. East Side Union High School Dist. (2003) 31 Cal 4th 990, for the proposition that the Court must find that the Declaration of Larry Heywood raises triable issues is misplaced. The Supreme Court in Kahn did not alter the general rule that expert testimony is inadmissible to determine the inherent risks of a sport or activity (baseball, swimming, martial arts, etc.) as that is a question of law reserved for the Court. It simply stated that in a primary assumption of the risk case, a trial court is not precluded from receiving expert opinion testimony “on the customary practices in an arena of esoteric activity,” such as the training techniques for shallow water diving that were at issue in Kahn “for the purposes of weighing whether the inherent risks of the activity were increased by the defendant’s conduct.” 31 Cal 4th at 1017. Recreational downhill snow skiing and its inherent risks do not constitute “an arena of esoteric activity.” The Court does not require any aid beyond common knowledge and the published decisions in this area to evaluate the issues presented as Plaintiff and all three defendants were simply recreational skiers.

The argument that Gordon Kin’s decision to allow Plaintiff to accompany Johnson Kin and John Sun (in part to accommodate Plaintiff’s desire to ski a blue slope) was somehow a negligent breach of his parental duty of care also fails to raise any triable issues of fact. The theory is not alleged in the Complaint (the same general negligence allegations are made against all three defendants without any differentiation); it has no impact on the application of the primary assumption of the risk doctrine as it remains undisputed that Plaintiff was a voluntary participant whose injury was caused by an inherent risk of the activity, and; given the Court’s prior ruling that Johnson Kin bears no responsibility for Plaintiff’s injury, any “entrustment” of Plaintiff to Johnson Kin was not a breach of any duty owed to Plaintiff by Gordon Kin or an act that contributed to Plaintiff’s injury from an inherent risk of skiing.

Defendant John Sun’s Motion for Summary Judgment is also GRANTED.

Sun has also established that the primary assumption of the risk doctrine, plainly applicable to a minor skier, provides him a complete defense. He submitted admissible evidence (the deposition testimony of Plaintiff, Gordon Kin, Johnson Kin and Sun, attached as exhibits C-F to the Declaration of Robert Anderson) sufficient to meet his initial burden to establish that he was merely a co-participant in the activity.

A co-participant is not liable for ordinary careless conduct committed during the sport unless “he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport.” Knight v. Jewett (1992) 3 Cal 4th 296, 318. Plaintiff does not allege that Sun intentionally injured him and there is no evidence that he engaged in reckless conduct totally outside the range of ordinary activity involved in snow skiing. Even if it assumed for purposes of argument that Sun’s actions or inactions qualified as simple negligence, “a skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another for simple negligence.” Cheong, supra, at 1066.

When the burden shifts to Plaintiff, he is unable to raise any triable issues of material fact. As noted above, Plaintiff cannot evade the several appellate and Supreme Court decisions in this area by submitting an expert declaration and claiming that it mandates a finding that triable issues exist.

The submitted evidence does not support Plaintiff’s argument that Defendant Sun expressly agreed to supervise Plaintiff, nor would such an agreement alter the application of the primary assumption of the risk doctrine to a minor’s voluntary participation in a sport or recreational activity.

Even if it were assumed for purposes of argument that the evidence did raise a reasonable inference that Defendant Sun was acting as a coach or instructor for Plaintiff, the outcome of the motion would remain the same. The decisions in this area make clear that a ski coach/instructor will not be liable for a student’s injuries unless the instructor engaged in intentional or reckless misconduct, since coaching/instructing inherently requires the coach to push the student beyond his or her comfort level and attempt new challenges. Kane, supra, at 211-212 (imposing liability on the instructor “would discourage instructors from asking their students to do anything more than they have done in the past, would therefore have a chilling effect on instruction, and thus would have a negative impact on the very purpose for seeking instruction: mastering the activity.”) “Learning any sport inevitably involves attempting new skills. A coach or instructor will often urge the student to go beyond what the student has already mastered; that is the nature of (inherent in) sports instruction.” Allan, supra, at 1368-1369. The primary assumption of the risk doctrine is a complete defense to claims against ski instructors for encouraging students to take risks beyond their abilities, descend more advanced slopes, and ski in hazardous conditions without first assessing the conditions or the students’ skill levels. Id., at 1369 (no liability where an instructor encouraged a novice skier to try skiing down from the top of the mountain); Kane, supra, at 213 (ski instructor not liable for encouraging two skiers to go down a hazardous trail without first assessing the conditions of the trail or the skiers’ abilities.) “[A]n instructor’s assessment errors—either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of conditions—are” within the range of ordinary activity involved in the sport and therefore within the scope of the primary assumption of the risk doctrine. Kane, supra, at 214.

For the reasons set forth above, Defendants’ Motions for Summary Judgment are GRANTED.