Preview
l CHRISTOPHER J. BEEMAN, ESQ. BAR#: 121194
ASHLEY N. MEYERS, ESQ. BAR#: 274072
2 CLAPP, MORONEY, VUCINICI-I, BEEMAN+SCHELEY , ~37
A PROFESSIONAL CORPORATION F 1.
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3 6130 Stoneridge Mall Road, Suite 275 SA! ='\ITY
Pleasanton, CA 94588 _ ,
4 (925) 734-0990 Fax: (925) 734-0888 JUN a AUIB
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5 Attorneys for Defendant em ’ m“ ‘ “Wm” ‘"
CHRISTIAN DEMECO By __.
DEPU I v CLERK
6
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN MATEO
lO
11 MARYBETH NEILL, Case N0. CIV531972
12 Plaintiff MEMORANDUM OF POINTS AND
AUTHORITIES
13 v.
14 Date: June 20, 2016
CHRISTIAN DEMECO, SQUAW VALLEY Time: 9:00 am
15 SKI HOLDINGS, LLC, and DOES 1 TO 25, Dept.: Law and Motion
inclusive,
l6
17 Defendants
l8
19
20 I. INTRODUCTION
/
Plaintiff, Marybeth Neill (hereinafter "Neill") has alleged that she was injured in a skiing
Authorities
collision with Defendant, Christian DeMeco (hereinafter "DeMeco"). While skiing at Squaw Valley
& Resort on January 5, 2013, Neill skied into DeMeco's path, traveling from a blind spot where she was
ll!Ill/ll!Illlll/llllllll!
Points
of not visible to other skiers and snowboarders descending the run. DeMeco and Neill collided with one
Memorandum
another.
__ll______
Neill did not see DeMeco prior to the collision. Neill has alleged that she fell to the ground
t!
CIV531972
83627
MPA
following the collision and fractured her left hip.
- .
[\)
\1
Plaintiff cannot prevail in this action as a matter of law against DeMeco because her claims
[\)
CO are barred by the affirmative defense of primary assumption of risk. Neill cannot show a single
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MEMORANDUM OF POINTS AND AUTHORITIES
material fact that would support the contention that DeMeco acted recklessly and increased the
inherent risks of skiing and therefore barring the doctrine of assumption of the risk. Additionally,
Plaintiffs claims are barred by the doctrine of express assumption of risk because Plaintiff signed a
liability release in exchange for her Season Pass to ski at Squaw Valley Resort for the 201 1-2012 and
2012-2013 seasons. The liability release prevents Plaintiff from bring a lawsuit against any person or
entity for injuries sustained while participating in the sport of skiing. Therefore, summary judgment
is appropriate.
II. PROCEDURAL HISTORY & FACTUAL BACKGROUND
On January 5, 2013 Christian DeMeco was an intermediate to advanced snowboarder with 100
10 days of experience snowboarding and skiing including 25 days experience at Squaw Valley Resort.
11 [Undisputed Statement of P acts ("USP") No. 15]. Neill was an advanced intermediate skier who had
12 skied Squaw Valley 40-60 times since 2009. [USP No. 16].
13 In the mid-morning on January 5, 2013, DeMeco was traversing the Siberia Run Trail at
14 Squaw Valley Resort. [USP No. 6]. As he was traversing, Plaintiff skied directly into his path from
15 a blind spot that was concealed by the terrain. [Id.] Despite traveling slowly, at a rate of 5-10 miles
16 per hour, DeMeco did not have adequate time to avoid a collision with Plaintiff and they collided.
17 [USP No. 7]. Prior to the collision, Neill did not see DeMeco at all. [USP No. 8 and 9]. She did not
18 witness his speed, his path of travel and she did not witness him jumping or becoming airborne. [Id.]
19 DeMeco was traveling at a slow speed and did not jump or become airborne while descending the
20 Siberia Run prior to the collision. [USP No. 10]. Following the collision, DeMeco flagged down a
21 member of the Ski Patrol and requested medical assistance for Plaintiff. [USP No. 13]. DeMeco
22 stayed with Neill until the medical assistance arrived. [Id.] I-Ie was interviewed by a member of the
23 Ski Patrol regarding the collision and explained that Neill had come out of a blind spot and he was
24 unable to avoid a collision. [USP No. 14]. The Ski Patrol released DeMeco to continue snowboarding.
25 [Id.]
26 On the day of the collision, Neill utilized her Squaw Valley Season Pass to access the Resort.
27 [USP No. 2]. Neill signed a Season Pass Release of Liability and Indemnity Agreement on November
28 15, 2011 which she renewed with the purchase ofthe 2012-2013 Season Pass. [USP No. 3]. In signing
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MEMORANDUM OF POINTS AND AUTHORITIES
the Release of Liability, Neill acknowledged that skiing involved risks posed by collisions with other
skiers and snowboarders and she agreed that she would be barred from making a claim for damages
in the event of injury from her participation in the sport against anyone. [USF No. 4]. At the time of
the collision, Neill was aware that collisions with other skiers and snowboarders were possible while
participating in the sport of skiing. [USF No. l 1].
The Release of Liability executed by Plaintiff reads, in pertinent part, as follows:
l. I UNDERSTAND THAT MY PARTICIPATION AND/OR MY
CHILD'S PARTICIPATION IN THE SPORTS OF SKIING,
SNOWBOARDING, SUMMER ACTIVITIES AND OTHER
RECREATIONAL ACTIVITIES (COLLECTIVELY
REFERRED TO AS THE "Sp0rt") CAN BE DANGEROUS AND
INVOLVE THE RISK 0F INJURY AND DEATH. I understand
10 the sport involves numerous risks including, but not limited to the risks
posed by variations in terrain and snow conditions, icy or firm snow,
11 unmarked obstacles, thin snow cover, bare spots, bumps, moguls,
stumps, forest growth, and debris, erosion control, devices, rocks,
12 cliffs, steep terrain, deep snow, avalanches, and other hazards whether
they are obvious or not. I also understand that the Sport involves risks
13 posed by loss of balance, loss of control, falling, sliding, collisions with
other participates and collisions with marked or unmarked natural and
14 manmade objects, including trees, rocks, fences, posts, lift towers snow
making equipment, snowmobiles and other vehicles.
15
2. Despite the risks involved in the Sport and as consideration for being
16 allowed to participate in the Sport and as consideration for being
allowed to participate in the sport I AGREE TO EXPRESSLY
17 ASSUME ANY AND ALL RISK OF INJURY OR DEATH which
might be associated with my and/or my child's participation in the
18 Sport and use of the facilities at the Ski Area, including but not limited
to, the use of terrain parks, chairlifts and other mountain transportation,
19 rental equipment, instruction, racing, traveling beyond the ski area
boundary, bicycling, hiking, climbing in mountainous terrain, tennis,
2O Frisbee golf, use of the lagoon/pool/spa, zip line, and participation in
photo shoots or special events (hereinafter collectively referred to as
21 "use of the facilities").
22 4. I understand that this RELEASE OF LIABILITY will prevent me,
my child and my heirs from filing suit or making any claim for
23 damages in the event of injury or death arising from my participation
or my child's participation in the Sport or use of the facilities. I
24 UNDERSTAND THAT THIS IS A RELEASE OF LIABILITY
AND AGREE THAT IT IS VALID FOREVER, and
25 will apply whenever I or my child participate in the Sport or engage
in use of the facilities. I UNDERSTAND THAT THIS IS A
26 RELEASE OF LIABILITY AND AGREE THAT IT IS VALID
FOREVER, and will apply whenever I or my child participate in the
27 Sport or engage in use of the facilities. I understand and agree that
each time I uSe my Season Pass or anyone for whom I have executed
28 this agreement uses his or her Season Pass, this will constitute a
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MEMORANDUM OF POINTS AND AUTHORITIES
renewal and reaflirmation of my and the user's acceptance.
FURTHER, I UNDERSTAND AND AGREE THAT IF I
RENEW OR PURCHASE A SEASON PASS FOR ME OR MY
CHILD AT ANY POINT IN THE FUTURE, THIS RELEASE
WILL BE VALID AND BINDING UPON ME AND/OR MY
CHILD.
[USP No.4]
On January 3, 2015 Neill filed a complaint against Squaw Valley Resort and Christian
DeMeco. [USP No. l7]. Following demurrers from Squaw Valley Resort and DeMeeo the remaining
causes of action against DeMeco were Negligence and Battery. [USP No. l8].
III. ARGUMENT
10 A. SUMMARY ADJ UDICATION MUST BE GRANTED IF A CAUSE OF ACTION HAS NO
11 MERIT OR THERE IS A COMPLETE DEFENSE TO THAT ACTION
12 Code of Civil Procedure § 437c provides that “[a] motion for summary judgment shall be
13 granted if all the papers submitted show that there is no triable issue as to any material fact and that
14 the moving party is entitled to judgment as a matter of law.” Cal. Code Civ. Proc. § 437c(c). The
15 purpose of the law of summary judgment is to provide courts with a mechanism to cut through the
16 parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to
17 resolve their dispute. Auguilar v. Atlantic Richfield Company, (2001) 25 Cal. 4th 826, 843 (underline
18 added).
19 A defendant moving for summary judgment may either (l) negate the plaintiffs claim or cause
20 of action with evidence demonstrating that one or more elements of the claim do not exist or cannot
21 be established by admissible evidence, or (2) show that the claim or cause of action is barred by an
22 affirmative defense. (Cal. Code Civ. Proc. 437c(n); Souza v. Squaw Valley Ski Corp. (2006) 138
23 Cal.App.4th 262, 265.) Once this is done, the burden shifts to the Plaintiff to produce admissible
24 evidence showing that a triable issue of one or more material facts exists as to that issue, claim or
25 cause of action, or defense. (Aguilar at 849-855; Saelzer v. Advanced Group 400 (2001) 25 Cal.4th
26 763, 767-767; Guz v.Bechtel National, Inc. (2000) 24 Cal. 4th 317, 334.) The pleadings determine
27 what issues are "material", and a defendant need only address issues raised in the complaint. (Souza
28 at 270; Alvis v. County 0f Ven/ura (2009) 178 Cal.App.4th 536.)
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MEMORANDUM OF POINTS AND AUTHORITIES
Summary judgment is appropriate under the affirmative defense of Primary Assumption of the
Risk where a Plaintiff is injured while participating in a sport or recreational activity with inherent
risks. (Knight v..Iewett (1992) 3 Cal.4th 296, 313; American Golf Corp. v.Superior Court (2000) 79
Cal.App.4th 30, 37.) It is especially appropriate under the doctrine of Express Assumption of the Risk
in sports injury cases where a Plaintiff has signed a liability release. (Allan v. Snow Summit, Inc.
(1996) 51 Cal.App.4th 1358, 1365; Paralift, Inc. v.Superior Court (1993) 23 Cal.App.4th 748, 757.)
There are no triable issues of material fact upon which Plaintiff will be able to establish that
DeMeco did anything to increase the risks inherent in the sport of skiing. Further, DeMeco has
established that Plaintiffs signing of the Release of Liability precludes her from maintaining an action
10 against him for injuries she sustained while participating in the sport of skiing. For these reasons
11 Defendant Christian DeMeco is entitled to summary judgment as a matter of law.
12 B. PLAINTIFF’S NEGLIGENCE AND BATTERY CLAIMS ARE BARRED BY THE
13 DOCTRINE OF EXPRESS ASSUMPTION OF THE RISK
14 Plaintiffs causes of action against DeMeco are entirely based on an unintentional collision
15 between Plaintiff and DeMeco which occurred while Plaintiff was participating in the sport of skiing
16 at Squaw Valley Resort. The Release of Liability signed by Plaintiff expressly acknowledged the risk
17 of collisions with other participants in the sport. [USP No. 4]. She further acknowledged that she
18 would be prevented from "filing suit or making any claim for damages in the event of inj ury or death
19 arising from [her] participation in the Sport or use of the facilities." [Id.] The collision at issue in
2O this action falls squarely within the language of this Release of Liability.
21 California courts have long recognized that a written release may exculpate a tortfeasor from
22 fiature ordinary negligence or misconduct. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th
23 1351, 1356; Bennett v. UnitedSlates Cycling Federation (1987) 193 Cal.App.3d 1485, 1490.) To be
24 valid, the release "must be clear, unambiguous and explicit" in expressing the intent of the parties.
25 (Paralift, Inc. at 755.) In addition, the release must not be against public policy. (City 0f Santa
26 Barbara v. Superior Court (2007) 41 Cal.4th 747, 779-780.) In the absence of extrinsic evidence, the
27 scope of a release is determined by its express language (Sanchez v. Bally 's Total Filness Corp. (1998)
28 68 Cal.App.4th 62, 69) as a matter of law (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354,
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MEMORANDUM 0F POINTS AND AUTHORITIES
360). To be operative, the defendant's conduct which results in the plaintiffs injury must be
reasonably related to the object or purpose for which the release is given. (Lund v. Bally’s Aerobic Plus
(2000) 78 Cal.App.4th 733, 738.)
In the context of recreational activities, agreements between liability releases are generally
upheld as not being against public policy because such activities do not involve an essential public
service. (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [release for
snow skiing]; Halsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 343 [release for
parachute jumping].)
In the case at hand, the release is clear and unequivocal and it explicitly lists the risk of
10 collision with other participants in the sports of skiing and snowboarding. Plaintiff testified at her
11 deposition that she was aware that collisions with other skiers and snowboarders were possible while
12 participating in the sport of skiing. [USF No. 11]. Additionally, the fact that Plaintiff is agreeing to
13 release co-participants in the sports of skiing and snowboarding is clear because the paragraph
14 agreeing to a release of liability against all persons is separate from the paragraph which specifically
15 releases Squaw Valley Resort and its affiliated entities from liability. [USF No. 4, Exhibit D].
16 Therefore, because Plaintiffs causes of action against DeMeco arise entirely from an unintentional
17 collision between the parties which occurred while Plaintiff and DeMeco were both participating in
18 the sports of skiing and snowboarding, under California law, it is appropriate to find that the Release
19 of Liability signed by Plaintiff is a complete bar to Plaintiffs causes of action for negligence and
20 battery.
21 There are no disputed material facts that would allow Neill to establish that the collision which
22 is the subject of this action is completely barred by the Release of Liability she signed when
23 purchasing her season pass to Squaw Valley Resort and summary judgment is appropriate.
24 C. PLAINTIFF’S NEGLIGENCE AND BATTERY CLAIMS ARE BARRED BY THE
25 DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK
26 Even if Plaintiff had not expressly agreed to a Release of Liability for all injuries incurred
27 while participating in the sport of skiing at Squaw Valley Resort, summary judgment is still
28 appropriate under the doctrine of Primary Assumption of the Risk because plaintiffs injuries were the
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MEMORANDUM OF POINTS AND AUTHORITIES
result of a collision and the risk of collision is inherent to the sport of skiing.
In Knight v. Jewell (1992) 3 Cal. 4th 296, 315, the California Supreme Court described the
principles of assumption of risk. In order to know if a plaintiff assumed the risk of a particular activity,
the court must determine if the defendant owed a duty to the plaintiff. (Id. at 3 13.)The existence and
scope of a defendant's duty of care is a legal question to be decided by the court rather than by the jury.
(1d.) In the sports context, the determination of the existence of a defendant's duty of care and the
scope thereof is a "legal question which depends on the nature of the sport or activity in question and
on the parties‘ general relationship to the activity." (Id.)
"Although persons generally owe a duty of due care not to cause an unreasonable risk of harm
lO to others (Civ. Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently
11 dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or
12 inhibit vigorous participation." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990,
13 1003.) The primary assumption of risk doctrine, a rule of limited duty, was developed to avoid such
14 achilling effect. (Knight at 308.) Where the doctrine applies to co-participants in the activity, they owe
15 other participants only the duty not to act so as to increase the risk of injury over that inherent in the
16 activity. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162; Kahn, at 1004, Nalwa
17 v.Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.)
18 Looking first at the nature of the sport, the California Supreme Court found that "[i]n the sports
19 setting . . .conditions or conduct that otherwise might be viewed as dangerous often are an integral
2O part of the sport itself." (Knight at 316.) As a matter of policy, it would not be appropriate to
21 recognize a duty of care when to do so would require that an integral part of the sport be abandoned,
22 or would discourage vigorous participation in sporting events. Accordingly, defendants generally do
23 not have a duty to protect a plaintiff from the risks inherent in a sport, or to eliminate risk from a sport,
24 although they generally do have a duty not to increase the risk of harm beyond what is inherent in the
25 sport. (1d)
26 The Kahn court further explained, "But the question of duty depends not only on the nature of
27 the sport, but also on the ‘role of the defendant whose conduct is at issue in a given case." (Kahn at
28 1004.) Duties with respect to the same risk may vary according to the role played by particular
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MEMORANDUM OF POINTS AND AUTHORITIES
defendants involved in the sport. In Knight, supra, 3 Ca1.4th 296, the Court examined whether
co-participants in an active sport such as touch football, may be held liable to each other, and they
stressed the role of the participant in the sport and the likely effect on the sport of imposing liability
on such persons. To impose liability on a co-participant for "normal energetic conduct" while playing
-even careless conduct - could chill vigorous participation in the sport. (Knight at 31 8.) Accordingly,
co-participants only breach a duty of care to each other if they "intentionally iniure another player or
enQaOe in conduct that is so reckless as to be totallv outside the range ofthe ordinarv activity involved
in the sport." (Kahn at pp. 1004-1005, underlining added.)
Plaintiff is unable to establish any material fact that would support the contention that DeMeco
10 engaged in any conduct that was outside of the range of ordinary activity involved in the sports of
11 skiing or snowboarding. DeMeco was traversing the Siberia Run at a slow pace when the collision
12 occurred. [USF No. 7]. Additionally, Plaintiff admitted that she did not see DeMeco prior t0 the
13 collision and that she never saw him taking jumps on the run or becoming airborne. [USF Nos. 8-9].
14 Following the collision, Mr. DeMeco acted prudently, flagging down a member 0f the ski patrol and
15 obtaining assistance for the Plaintiff. [USP No. 13]. He was interviewed by the Ski Patrol and he was
16 not cited, nor did he have his lift ticket taken, rather, he was permitted to continue snowboarding for
17 the remainder of the day. [USF No. l4].
18 Remarkably similar fact patterns have been considered by the California Supreme Court and
19 the California Court of Appeal and summary judgment was considered to be appropriate in those cases.
2O The Court determined that a skier who caused a collision because he was skiing faster than he was
21 comfortable with in bad conditions causing him to be unable to stop himself from colliding with
22 another skier was still within the range of the ordinary activity involved in the sport of skiing. (Cheong
23 v.Antablin (1997) 16 Ca1.4th 1063, 1066.) That conduct is clearly more negligent than the conduct
24 engaged in by DeMeco and even that level of negligence was considered to fall within the bounds of
25 ordinary activity when it came t0 the sport of skiing. Similarly, in Maslro v. Pelrick (2001) 93 Cal.
26 App. 4th 83 summary judgment was found to be appropriate in favor of a snowboarder who was
27 traveling at a very high rate of speed, 35 miles per hour, down the mountain when he collided with the
28 plaintiff causing plaintiff a serious knee injury. The Masrro court found that skiers and snowboarders
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MEMORANDUM OF POINTS AND AUTHORITIES
are co-participants in recreational snow sports and that even though the stance used by snowboarders
increased the difficulty of seeing skiers and snowboarders lower on the slope, descending the mountain
at 35 miles per hour was not reckless. (Id. at 92.)
Indeed, the only instances where a co-participant was found to be engaging in conduct that was
outside of the range of ordinary activity occurred when a defendant was engaging in conduct that was
not directly related to the sport and not connected to the vigorous participation in the sport. In these
cases, there was an additional element of risk that the defendant added to the activity of skiing or
snowboarding that was not inherent to the sport. In Freeman v.Hale, the defendant added the activity
of drinking alcoholic beverages and the court held that such conduct may have increased the risk of
10 collision. (Freeman v. Hale (1994) 30 Cal.App.4th 1388). In Mammoth Mountain Ski Area v.
11 Graham, the defendant added the activity of snowball fighting t0 the activity of skiing, and the court
12 determined that such activity was not inherent to skiing and that the defendant's recklessness was a
13 triable issue of fact. (Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367). In
14 Lackner v.North, the defendant added the element of racing down the mountain on a non-designated
15 run while defendant was frequently looking backwards to evaluate his position in the race. (Lackner
16 v. North, (2006) 135 Cal.App.4th 1188).
17 The addition of alcohol usage, engaging in snowball fighting while skiing and engaging in a
18 race while looking backwards at the other racers all involve the clear addition of another activity that
19 is simply not inherent to the vigorous participation in the sports of skiing or snowboarding.
2O Comparing these cases with Cheong and Maslro, itis clear that this collision was the result of the
21 inherent risk of participating in the sport of skiing and was not the result of reckless conduct over and
22 above the ordinary activity involved in these sports. For the reasons set forth herein, summary
23 judgment is appropriate in this matter and the action against Defendant DeMeco should be subject to
24 dismissal.
25 VII. CONCLUSION
26 There are no disputed issues of material fact that would support Neill’s causes of action for
27 Negligence and Battery against DeMeco. First, the collision which is the subject of this action is
28 completely barred by the Release of Liability she signed when purchasing her season pass to Squaw
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MEMORANDUM OF POINTS AND AUTHORITIES
Valley Resort. Second, DeMeco has shown a lack of evidence sufficient to shift the burden of
production to the Plaintiff. He has affirmatively shown that there is no evidence that DeMeco was
engaging in conduct that was reckless or outside of the range ofordinary activity involved in the sports
of skiing or snowboarding. DeMeco did nothing to increase the risks inherent to these sports.
Christian DeMeco is therefore entitled to summary judgment as a matter of law.
DATED: March 28, 2016 CLAPP, MORONEY, VUCINICI-I,
BEEMAN+SCHELEY
By:
CHRISTOPHER J. BEEMAN, ESQ.
10 Attorneys for Defendant CHRISTIAN DEMECO
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MEMORANDUM OF POINTS AND AUTHORITIES
Marybeth Neill v. Christian Demeco, ct a1.
San Mateo County Superior Court Case No. CIV531972
PROOF OF SERVICE BY MESSENGER
I, the undersigned, hereby declare that I am over the age of eighteen years and not a party to
the within action. My business address is 6130 Stoneridge Mall Road, Suite 275, Pleasanton, CA
94588.
On the date indicated below, I served by messenger a true copy of the following documents:
MEMORANDUM OF POINTS AND AUTHORITIES
I served the documents by placing them in an envelope or package addressed to the
persons listed below and providing them to a professional messenger service for service.
10 Attorney for Plaintiff Attornev for Squaw Valley, LLC
David B. Newdorf, Esq. John E. Fagan, Esq.
11 220 Montgomery Street, Suite 1850 Kristin M. Bohm, Esq.
San Francisco, CA 94104 Duane Morris LLP
12 Tel:415-357-1234 l 1149 Brockway Road, Suite 100
Faxz866-954-8448 Truckee, CA 96161
13 Tel: 530-550-2050
Fax: 530-550-8619
14
15 Executed on March 31, 2016 at Pleasanton, California. I declare under penalty of perjury
under the laws of the State of California that the foregoing is true and correct.
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l CHRISTOPHER J. BEEMAN, ESQ. BAR#: 121194 ASHLEY N. MEYERS, ESQ. BAR#: 274072 2 CLAPP, MORONEY, VUCINICI-I, BEEMAN+SCHELEY , ~37 A PROFESSIONAL CORPORATION F 1. ‘ rt» ‘,1 ~ ' 3 6130 Stoneridge Mall Road, Suite 275 SA! ='\ITY Pleasanton, CA 94588 _ , 4 (925) 734-0990 Fax: (925) 734-0888 JUN a AUIB ,2 5 Attorneys for Defendant em ’ m“ ‘ “Wm” ‘" CHRISTIAN DEMECO By __. DEPU I v CLERK 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN MATEO lO 11 MARYBETH NEILL, Case N0. CIV531972 12 Plaintiff MEMORANDUM OF POINTS AND AUTHORITIES 13 v. 14 Date: June 20, 2016 CHRISTIAN DEMECO, SQUAW VALLEY Time: 9:00 am 15 SKI HOLDINGS, LLC, and DOES 1 TO 25, Dept.: Law and Motion inclusive, l6 17 Defendants l8 19 20 I. INTRODUCTION / Plaintiff, Marybeth Neill (hereinafter "Neill") has alleged that she was injured in a skiing Authorities collision with Defendant, Christian DeMeco (hereinafter "DeMeco"). While skiing at Squaw Valley & Resort on January 5, 2013, Neill skied into DeMeco's path, traveling from a blind spot where she was ll!Ill/ll!Illlll/llllllll! Points of not visible to other skiers and snowboarders descending the run. DeMeco and Neill collided with one Memorandum another. __ll______ Neill did not see DeMeco prior to the collision. Neill has alleged that she fell to the ground t! CIV531972 83627 MPA following the collision and fractured her left hip. - . [\) \1 Plaintiff cannot prevail in this action as a matter of law against DeMeco because her claims [\) CO are barred by the affirmative defense of primary assumption of risk. Neill cannot show a single F:\Data\DOCS\9294\04449\msj—mpa.pld.wpd 1 MEMORANDUM OF POINTS AND AUTHORITIES material fact that would support the contention that DeMeco acted recklessly and increased the inherent risks of skiing and therefore barring the doctrine of assumption of the risk. Additionally, Plaintiffs claims are barred by the doctrine of express assumption of risk because Plaintiff signed a liability release in exchange for her Season Pass to ski at Squaw Valley Resort for the 201 1-2012 and 2012-2013 seasons. The liability release prevents Plaintiff from bring a lawsuit against any person or entity for injuries sustained while participating in the sport of skiing. Therefore, summary judgment is appropriate. II. PROCEDURAL HISTORY & FACTUAL BACKGROUND On January 5, 2013 Christian DeMeco was an intermediate to advanced snowboarder with 100 10 days of experience snowboarding and skiing including 25 days experience at Squaw Valley Resort. 11 [Undisputed Statement of P acts ("USP") No. 15]. Neill was an advanced intermediate skier who had 12 skied Squaw Valley 40-60 times since 2009. [USP No. 16]. 13 In the mid-morning on January 5, 2013, DeMeco was traversing the Siberia Run Trail at 14 Squaw Valley Resort. [USP No. 6]. As he was traversing, Plaintiff skied directly into his path from 15 a blind spot that was concealed by the terrain. [Id.] Despite traveling slowly, at a rate of 5-10 miles 16 per hour, DeMeco did not have adequate time to avoid a collision with Plaintiff and they collided. 17 [USP No. 7]. Prior to the collision, Neill did not see DeMeco at all. [USP No. 8 and 9]. She did not 18 witness his speed, his path of travel and she did not witness him jumping or becoming airborne. [Id.] 19 DeMeco was traveling at a slow speed and did not jump or become airborne while descending the 20 Siberia Run prior to the collision. [USP No. 10]. Following the collision, DeMeco flagged down a 21 member of the Ski Patrol and requested medical assistance for Plaintiff. [USP No. 13]. DeMeco 22 stayed with Neill until the medical assistance arrived. [Id.] I-Ie was interviewed by a member of the 23 Ski Patrol regarding the collision and explained that Neill had come out of a blind spot and he was 24 unable to avoid a collision. [USP No. 14]. The Ski Patrol released DeMeco to continue snowboarding. 25 [Id.] 26 On the day of the collision, Neill utilized her Squaw Valley Season Pass to access the Resort. 27 [USP No. 2]. Neill signed a Season Pass Release of Liability and Indemnity Agreement on November 28 15, 2011 which she renewed with the purchase ofthe 2012-2013 Season Pass. [USP No. 3]. In signing F: \Data\DOCS\9294\04449\msj—mpa.pld.wpd 2 MEMORANDUM OF POINTS AND AUTHORITIES the Release of Liability, Neill acknowledged that skiing involved risks posed by collisions with other skiers and snowboarders and she agreed that she would be barred from making a claim for damages in the event of injury from her participation in the sport against anyone. [USF No. 4]. At the time of the collision, Neill was aware that collisions with other skiers and snowboarders were possible while participating in the sport of skiing. [USF No. l 1]. The Release of Liability executed by Plaintiff reads, in pertinent part, as follows: l. I UNDERSTAND THAT MY PARTICIPATION AND/OR MY CHILD'S PARTICIPATION IN THE SPORTS OF SKIING, SNOWBOARDING, SUMMER ACTIVITIES AND OTHER RECREATIONAL ACTIVITIES (COLLECTIVELY REFERRED TO AS THE "Sp0rt") CAN BE DANGEROUS AND INVOLVE THE RISK 0F INJURY AND DEATH. I understand 10 the sport involves numerous risks including, but not limited to the risks posed by variations in terrain and snow conditions, icy or firm snow, 11 unmarked obstacles, thin snow cover, bare spots, bumps, moguls, stumps, forest growth, and debris, erosion control, devices, rocks, 12 cliffs, steep terrain, deep snow, avalanches, and other hazards whether they are obvious or not. I also understand that the Sport involves risks 13 posed by loss of balance, loss of control, falling, sliding, collisions with other participates and collisions with marked or unmarked natural and 14 manmade objects, including trees, rocks, fences, posts, lift towers snow making equipment, snowmobiles and other vehicles. 15 2. Despite the risks involved in the Sport and as consideration for being 16 allowed to participate in the Sport and as consideration for being allowed to participate in the sport I AGREE TO EXPRESSLY 17 ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with my and/or my child's participation in the 18 Sport and use of the facilities at the Ski Area, including but not limited to, the use of terrain parks, chairlifts and other mountain transportation, 19 rental equipment, instruction, racing, traveling beyond the ski area boundary, bicycling, hiking, climbing in mountainous terrain, tennis, 2O Frisbee golf, use of the lagoon/pool/spa, zip line, and participation in photo shoots or special events (hereinafter collectively referred to as 21 "use of the facilities"). 22 4. I understand that this RELEASE OF LIABILITY will prevent me, my child and my heirs from filing suit or making any claim for 23 damages in the event of injury or death arising from my participation or my child's participation in the Sport or use of the facilities. I 24 UNDERSTAND THAT THIS IS A RELEASE OF LIABILITY AND AGREE THAT IT IS VALID FOREVER, and 25 will apply whenever I or my child participate in the Sport or engage in use of the facilities. I UNDERSTAND THAT THIS IS A 26 RELEASE OF LIABILITY AND AGREE THAT IT IS VALID FOREVER, and will apply whenever I or my child participate in the 27 Sport or engage in use of the facilities. I understand and agree that each time I uSe my Season Pass or anyone for whom I have executed 28 this agreement uses his or her Season Pass, this will constitute a E‘:\Data\DOCS\9294\O4449\msj—mpa.pld.wpd 3 MEMORANDUM OF POINTS AND AUTHORITIES renewal and reaflirmation of my and the user's acceptance. FURTHER, I UNDERSTAND AND AGREE THAT IF I RENEW OR PURCHASE A SEASON PASS FOR ME OR MY CHILD AT ANY POINT IN THE FUTURE, THIS RELEASE WILL BE VALID AND BINDING UPON ME AND/OR MY CHILD. [USP No.4] On January 3, 2015 Neill filed a complaint against Squaw Valley Resort and Christian DeMeco. [USP No. l7]. Following demurrers from Squaw Valley Resort and DeMeeo the remaining causes of action against DeMeco were Negligence and Battery. [USP No. l8]. III. ARGUMENT 10 A. SUMMARY ADJ UDICATION MUST BE GRANTED IF A CAUSE OF ACTION HAS NO 11 MERIT OR THERE IS A COMPLETE DEFENSE TO THAT ACTION 12 Code of Civil Procedure § 437c provides that “[a] motion for summary judgment shall be 13 granted if all the papers submitted show that there is no triable issue as to any material fact and that 14 the moving party is entitled to judgment as a matter of law.” Cal. Code Civ. Proc. § 437c(c). The 15 purpose of the law of summary judgment is to provide courts with a mechanism to cut through the 16 parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to 17 resolve their dispute. Auguilar v. Atlantic Richfield Company, (2001) 25 Cal. 4th 826, 843 (underline 18 added). 19 A defendant moving for summary judgment may either (l) negate the plaintiffs claim or cause 20 of action with evidence demonstrating that one or more elements of the claim do not exist or cannot 21 be established by admissible evidence, or (2) show that the claim or cause of action is barred by an 22 affirmative defense. (Cal. Code Civ. Proc. 437c(n); Souza v. Squaw Valley Ski Corp. (2006) 138 23 Cal.App.4th 262, 265.) Once this is done, the burden shifts to the Plaintiff to produce admissible 24 evidence showing that a triable issue of one or more material facts exists as to that issue, claim or 25 cause of action, or defense. (Aguilar at 849-855; Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 26 763, 767-767; Guz v.Bechtel National, Inc. (2000) 24 Cal. 4th 317, 334.) The pleadings determine 27 what issues are "material", and a defendant need only address issues raised in the complaint. (Souza 28 at 270; Alvis v. County 0f Ven/ura (2009) 178 Cal.App.4th 536.) F:\Data\DOCS\9294\O4449\msj—mpa.pld.wpd 4 MEMORANDUM OF POINTS AND AUTHORITIES Summary judgment is appropriate under the affirmative defense of Primary Assumption of the Risk where a Plaintiff is injured while participating in a sport or recreational activity with inherent risks. (Knight v..Iewett (1992) 3 Cal.4th 296, 313; American Golf Corp. v.Superior Court (2000) 79 Cal.App.4th 30, 37.) It is especially appropriate under the doctrine of Express Assumption of the Risk in sports injury cases where a Plaintiff has signed a liability release. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1365; Paralift, Inc. v.Superior Court (1993) 23 Cal.App.4th 748, 757.) There are no triable issues of material fact upon which Plaintiff will be able to establish that DeMeco did anything to increase the risks inherent in the sport of skiing. Further, DeMeco has established that Plaintiffs signing of the Release of Liability precludes her from maintaining an action 10 against him for injuries she sustained while participating in the sport of skiing. For these reasons 11 Defendant Christian DeMeco is entitled to summary judgment as a matter of law. 12 B. PLAINTIFF’S NEGLIGENCE AND BATTERY CLAIMS ARE BARRED BY THE 13 DOCTRINE OF EXPRESS ASSUMPTION OF THE RISK 14 Plaintiffs causes of action against DeMeco are entirely based on an unintentional collision 15 between Plaintiff and DeMeco which occurred while Plaintiff was participating in the sport of skiing 16 at Squaw Valley Resort. The Release of Liability signed by Plaintiff expressly acknowledged the risk 17 of collisions with other participants in the sport. [USP No. 4]. She further acknowledged that she 18 would be prevented from "filing suit or making any claim for damages in the event of inj ury or death 19 arising from [her] participation in the Sport or use of the facilities." [Id.] The collision at issue in 2O this action falls squarely within the language of this Release of Liability. 21 California courts have long recognized that a written release may exculpate a tortfeasor from 22 fiature ordinary negligence or misconduct. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 23 1351, 1356; Bennett v. UnitedSlates Cycling Federation (1987) 193 Cal.App.3d 1485, 1490.) To be 24 valid, the release "must be clear, unambiguous and explicit" in expressing the intent of the parties. 25 (Paralift, Inc. at 755.) In addition, the release must not be against public policy. (City 0f Santa 26 Barbara v. Superior Court (2007) 41 Cal.4th 747, 779-780.) In the absence of extrinsic evidence, the 27 scope of a release is determined by its express language (Sanchez v. Bally 's Total Filness Corp. (1998) 28 68 Cal.App.4th 62, 69) as a matter of law (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, F: \Data\DOCS\9294\O4449\msj~mpa.pld.wpd 5 MEMORANDUM 0F POINTS AND AUTHORITIES 360). To be operative, the defendant's conduct which results in the plaintiffs injury must be reasonably related to the object or purpose for which the release is given. (Lund v. Bally’s Aerobic Plus (2000) 78 Cal.App.4th 733, 738.) In the context of recreational activities, agreements between liability releases are generally upheld as not being against public policy because such activities do not involve an essential public service. (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [release for snow skiing]; Halsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 343 [release for parachute jumping].) In the case at hand, the release is clear and unequivocal and it explicitly lists the risk of 10 collision with other participants in the sports of skiing and snowboarding. Plaintiff testified at her 11 deposition that she was aware that collisions with other skiers and snowboarders were possible while 12 participating in the sport of skiing. [USF No. 11]. Additionally, the fact that Plaintiff is agreeing to 13 release co-participants in the sports of skiing and snowboarding is clear because the paragraph 14 agreeing to a release of liability against all persons is separate from the paragraph which specifically 15 releases Squaw Valley Resort and its affiliated entities from liability. [USF No. 4, Exhibit D]. 16 Therefore, because Plaintiffs causes of action against DeMeco arise entirely from an unintentional 17 collision between the parties which occurred while Plaintiff and DeMeco were both participating in 18 the sports of skiing and snowboarding, under California law, it is appropriate to find that the Release 19 of Liability signed by Plaintiff is a complete bar to Plaintiffs causes of action for negligence and 20 battery. 21 There are no disputed material facts that would allow Neill to establish that the collision which 22 is the subject of this action is completely barred by the Release of Liability she signed when 23 purchasing her season pass to Squaw Valley Resort and summary judgment is appropriate. 24 C. PLAINTIFF’S NEGLIGENCE AND BATTERY CLAIMS ARE BARRED BY THE 25 DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK 26 Even if Plaintiff had not expressly agreed to a Release of Liability for all injuries incurred 27 while participating in the sport of skiing at Squaw Valley Resort, summary judgment is still 28 appropriate under the doctrine of Primary Assumption of the Risk because plaintiffs injuries were the F:\Data\DOCS\9294\O44/l9\msj—mpa.plcl.wpd 6 MEMORANDUM OF POINTS AND AUTHORITIES result of a collision and the risk of collision is inherent to the sport of skiing. In Knight v. Jewell (1992) 3 Cal. 4th 296, 315, the California Supreme Court described the principles of assumption of risk. In order to know if a plaintiff assumed the risk of a particular activity, the court must determine if the defendant owed a duty to the plaintiff. (Id. at 3 13.)The existence and scope of a defendant's duty of care is a legal question to be decided by the court rather than by the jury. (1d.) In the sports context, the determination of the existence of a defendant's duty of care and the scope thereof is a "legal question which depends on the nature of the sport or activity in question and on the parties‘ general relationship to the activity." (Id.) "Although persons generally owe a duty of due care not to cause an unreasonable risk of harm lO to others (Civ. Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently 11 dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or 12 inhibit vigorous participation." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 13 1003.) The primary assumption of risk doctrine, a rule of limited duty, was developed to avoid such 14 achilling effect. (Knight at 308.) Where the doctrine applies to co-participants in the activity, they owe 15 other participants only the duty not to act so as to increase the risk of injury over that inherent in the 16 activity. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162; Kahn, at 1004, Nalwa 17 v.Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) 18 Looking first at the nature of the sport, the California Supreme Court found that "[i]n the sports 19 setting . . .conditions or conduct that otherwise might be viewed as dangerous often are an integral 2O part of the sport itself." (Knight at 316.) As a matter of policy, it would not be appropriate to 21 recognize a duty of care when to do so would require that an integral part of the sport be abandoned, 22 or would discourage vigorous participation in sporting events. Accordingly, defendants generally do 23 not have a duty to protect a plaintiff from the risks inherent in a sport, or to eliminate risk from a sport, 24 although they generally do have a duty not to increase the risk of harm beyond what is inherent in the 25 sport. (1d) 26 The Kahn court further explained, "But the question of duty depends not only on the nature of 27 the sport, but also on the ‘role of the defendant whose conduct is at issue in a given case." (Kahn at 28 1004.) Duties with respect to the same risk may vary according to the role played by particular F:\Data\DOCS\9294\O4449\msj—mpa.pld.wpd 7 MEMORANDUM OF POINTS AND AUTHORITIES defendants involved in the sport. In Knight, supra, 3 Ca1.4th 296, the Court examined whether co-participants in an active sport such as touch football, may be held liable to each other, and they stressed the role of the participant in the sport and the likely effect on the sport of imposing liability on such persons. To impose liability on a co-participant for "normal energetic conduct" while playing -even careless conduct - could chill vigorous participation in the sport. (Knight at 31 8.) Accordingly, co-participants only breach a duty of care to each other if they "intentionally iniure another player or enQaOe in conduct that is so reckless as to be totallv outside the range ofthe ordinarv activity involved in the sport." (Kahn at pp. 1004-1005, underlining added.) Plaintiff is unable to establish any material fact that would support the contention that DeMeco 10 engaged in any conduct that was outside of the range of ordinary activity involved in the sports of 11 skiing or snowboarding. DeMeco was traversing the Siberia Run at a slow pace when the collision 12 occurred. [USF No. 7]. Additionally, Plaintiff admitted that she did not see DeMeco prior t0 the 13 collision and that she never saw him taking jumps on the run or becoming airborne. [USF Nos. 8-9]. 14 Following the collision, Mr. DeMeco acted prudently, flagging down a member 0f the ski patrol and 15 obtaining assistance for the Plaintiff. [USP No. 13]. He was interviewed by the Ski Patrol and he was 16 not cited, nor did he have his lift ticket taken, rather, he was permitted to continue snowboarding for 17 the remainder of the day. [USF No. l4]. 18 Remarkably similar fact patterns have been considered by the California Supreme Court and 19 the California Court of Appeal and summary judgment was considered to be appropriate in those cases. 2O The Court determined that a skier who caused a collision because he was skiing faster than he was 21 comfortable with in bad conditions causing him to be unable to stop himself from colliding with 22 another skier was still within the range of the ordinary activity involved in the sport of skiing. (Cheong 23 v.Antablin (1997) 16 Ca1.4th 1063, 1066.) That conduct is clearly more negligent than the conduct 24 engaged in by DeMeco and even that level of negligence was considered to fall within the bounds of 25 ordinary activity when it came t0 the sport of skiing. Similarly, in Maslro v. Pelrick (2001) 93 Cal. 26 App. 4th 83 summary judgment was found to be appropriate in favor of a snowboarder who was 27 traveling at a very high rate of speed, 35 miles per hour, down the mountain when he collided with the 28 plaintiff causing plaintiff a serious knee injury. The Masrro court found that skiers and snowboarders r: \Data\DOCS\9294\04449\msj~mpa.pld.wpd 8 MEMORANDUM OF POINTS AND AUTHORITIES are co-participants in recreational snow sports and that even though the stance used by snowboarders increased the difficulty of seeing skiers and snowboarders lower on the slope, descending the mountain at 35 miles per hour was not reckless. (Id. at 92.) Indeed, the only instances where a co-participant was found to be engaging in conduct that was outside of the range of ordinary activity occurred when a defendant was engaging in conduct that was not directly related to the sport and not connected to the vigorous participation in the sport. In these cases, there was an additional element of risk that the defendant added to the activity of skiing or snowboarding that was not inherent to the sport. In Freeman v.Hale, the defendant added the activity of drinking alcoholic beverages and the court held that such conduct may have increased the risk of 10 collision. (Freeman v. Hale (1994) 30 Cal.App.4th 1388). In Mammoth Mountain Ski Area v. 11 Graham, the defendant added the activity of snowball fighting t0 the activity of skiing, and the court 12 determined that such activity was not inherent to skiing and that the defendant's recklessness was a 13 triable issue of fact. (Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367). In 14 Lackner v.North, the defendant added the element of racing down the mountain on a non-designated 15 run while defendant was frequently looking backwards to evaluate his position in the race. (Lackner 16 v. North, (2006) 135 Cal.App.4th 1188). 17 The addition of alcohol usage, engaging in snowball fighting while skiing and engaging in a 18 race while looking backwards at the other racers all involve the clear addition of another activity that 19 is simply not inherent to the vigorous participation in the sports of skiing or snowboarding. 2O Comparing these cases with Cheong and Maslro, itis clear that this collision was the result of the 21 inherent risk of participating in the sport of skiing and was not the result of reckless conduct over and 22 above the ordinary activity involved in these sports. For the reasons set forth herein, summary 23 judgment is appropriate in this matter and the action against Defendant DeMeco should be subject to 24 dismissal. 25 VII. CONCLUSION 26 There are no disputed issues of material fact that would support Neill’s causes of action for 27 Negligence and Battery against DeMeco. First, the collision which is the subject of this action is 28 completely barred by the Release of Liability she signed when purchasing her season pass to Squaw E:\Data\DOCS\9294\04449\msj—mpa.pld.wpd 9 MEMORANDUM OF POINTS AND AUTHORITIES Valley Resort. Second, DeMeco has shown a lack of evidence sufficient to shift the burden of production to the Plaintiff. He has affirmatively shown that there is no evidence that DeMeco was engaging in conduct that was reckless or outside of the range ofordinary activity involved in the sports of skiing or snowboarding. DeMeco did nothing to increase the risks inherent to these sports. Christian DeMeco is therefore entitled to summary judgment as a matter of law. DATED: March 28, 2016 CLAPP, MORONEY, VUCINICI-I, BEEMAN+SCHELEY By: CHRISTOPHER J. BEEMAN, ESQ. 10 Attorneys for Defendant CHRISTIAN DEMECO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 F:\Data\DOCS\9294\O4449\msj—mpa.pld.wpd 10 MEMORANDUM OF POINTS AND AUTHORITIES Marybeth Neill v. Christian Demeco, ct a1. San Mateo County Superior Court Case No. CIV531972 PROOF OF SERVICE BY MESSENGER I, the undersigned, hereby declare that I am over the age of eighteen years and not a party to the within action. My business address is 6130 Stoneridge Mall Road, Suite 275, Pleasanton, CA 94588. On the date indicated below, I served by messenger a true copy of the following documents: MEMORANDUM OF POINTS AND AUTHORITIES I served the documents by placing them in an envelope or package addressed to the persons listed below and providing them to a professional messenger service for service. 10 Attorney for Plaintiff Attornev for Squaw Valley, LLC David B. Newdorf, Esq. John E. Fagan, Esq. 11 220 Montgomery Street, Suite 1850 Kristin M. Bohm, Esq. San Francisco, CA 94104 Duane Morris LLP 12 Tel:415-357-1234 l 1149 Brockway Road, Suite 100 Faxz866-954-8448 Truckee, CA 96161 13 Tel: 530-550-2050 Fax: 530-550-8619 14 15 Executed on March 31, 2016 at Pleasanton, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 16 17 18 111w Tonyia Morales 19 20 21 22 23 24 25 26 27 28 F:\Dnta\DOCS\9294\04449\pr00f.mcsscngcr.wpd