Morrison Law Journal


The Morrison Law Journal July 2018 Volume XIII, Edition 7 A Win For Operators Of Recreational Facilities: Court Rules That Liability Waiver In Season Pass For Ski Area Includes Injuries Involving Maintenance Vehicles And Narrowly Construes What Constitutes Gross Negligence By: Edward F. Morrison, Jr., Esq. Larry A. Schwartz, Esq.
Waivers of liability are common place when using recreational facilities including snow ski areas, amusement parks and swimming facilities. However, arguments are often made that the manner in which the facility is operated causes there to be risks which are not inherent in the activity in question and accidents resulting from the manner in which the facility is operated should not be barred because of gross negligence on the part of the operator of the facility. This question was raised again involving a serious personal injury accident at the Mammoth Mountain Ski Area. That case, Kathleen Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) Westlaw 3455458 ("Willhide case"), involved an accident whereby Kathleen Willhide-Michiulis was seriously injured when her snowboard collided with a snowcat pulling a snow-grooming tiller. The accident resulted in the amputation of Ms. Willhide's left leg, skull fractures and other serious injuries. The accident occurred when Ms. Willhide's snowboard ran into the snowcat which, while initiating a turn, cut off her path of travel. The operator of the snowcat was not immediately aware of the accident and, once a warning light went on and the snow cat was stopped, it took about 30 minutes to remove Ms. Willhide from the tiller. Ms. Willhide sued the facility owner alleging that the snowcat should not have been operated while snow boarders were using the facility. Following demurrers, causes of action for gross negligence and loss of consortium survived the pleadings stage. The facility owner conceded that its policy was to avoid the operation of snowcats while skiers were using ski trails but pointed out that there were exceptions to that policy and there were warning signs posted in the ski lifts warning skiers to stay away from snowcats. The facility owner denied liability based on gross negligence and filed a Motion for Summary Judgment based on the waiver of liability in the season pass holder agreement. The trial court granted Summary Judgment on the basis that risk of even catastrophic injury is inherent in snowboarding and the operation of the snowcat was not an extreme departure from an ordinary standard of conduct. The Trial Court ruled that the operator of the snowcat, who drove down the middle of the run and did not signal his decision to initiate a turn did not act with gross negligence. Declarations of three experts proffered by the plaintiff were excluded. 1 On Appeal, the Court of Appeal affirmed holding that plaintiff could not show that the facility operator was grossly negligent and that express assumption of the risk applied. The Court ruled that the operation of the snowcat did not substantially or unreasonably increase the inherent risk of the activity. The Court ruled that the use of snowcats during business hours was an inherent risk in the sport. The Willhide case will be used by facility owners in cases involving the maintenance vehicles being operated during normal business hours and accidents resulting from that activity. About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com. Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com. Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter. 2

Waivers of liability are common place when using recreational facilities including snow ski areas, amusement parks and swimming facilities. However, arguments are often made that the manner in which the facility is operated causes there to be risks which are not inherent in the activity in question and accidents resulting from the manner in which the facility is operated should not be barred because of gross negligence on the part of the operator of the facility.

This question was raised again involving a serious personal injury accident at the Mammoth Mountain Ski Area. That case, Kathleen Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) Westlaw 3455458 ("Willhide case"), involved an accident whereby Kathleen Willhide-Michiulis was seriously injured when her snowboard collided with a snowcat pulling a snow-grooming tiller. The accident resulted in the amputation of Ms. Willhide's left leg, skull fractures and other serious injuries. The accident occurred when Ms. Willhide's snowboard ran into the snowcat which, while initiating a turn, cut off her path of travel. The operator of the snowcat was not immediately aware of the accident and, once a warning light went on and the snow cat was stopped, it took about 30 minutes to remove Ms. Willhide from the tiller.

Ms. Willhide sued the facility owner alleging that the snowcat should not have been operated while snow boarders were using the facility. Following demurrers, causes of action for gross negligence and loss of consortium survived the pleadings stage. The facility owner conceded that its policy was to avoid the operation of snowcats while skiers were using ski trails but pointed out that there were exceptions to that policy and there were warning signs posted in the ski lifts warning skiers to stay away from snowcats. The facility owner denied liability based on gross negligence and filed a Motion for Summary Judgment based on the waiver of liability in the season pass holder agreement.

The trial court granted Summary Judgment on the basis that risk of even catastrophic injury is inherent in snowboarding and the operation of the snowcat was not an extreme departure from an ordinary standard of conduct. The Trial Court ruled that the operator of the snowcat, who drove down the middle of the run and did not signal his decision to initiate a turn did not act with gross negligence. Declarations of three experts proffered by the plaintiff were excluded.

On Appeal, the Court of Appeal affirmed holding that plaintiff could not show that the facility operator was grossly negligent and that express assumption of the risk applied. The Court ruled that the operation of the snowcat did not substantially or unreasonably increase the inherent risk of the activity. The Court ruled that the use of snowcats during business hours was an inherent risk in the sport.

The Willhide case will be used by facility owners in cases involving the maintenance vehicles being operated during normal business hours and accidents resulting from that activity.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.

Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com.

Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter.