Goodfield v. Sugar Bowl Corp.

Filed 2/13/08 Goodfield v. Sugar Bowl Corp. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Plaintiff Lori Goodfield filed a complaint for damages against defendant Sugar Bowl Corporation (Sugar Bowl), a ski resort, on whose premises she was injured in a collision with another skier.^[1] Plaintiff alleged that the resorts negligent design and construction were partly responsible for her injuries. Defendant moved for summary judgment. Plaintiff (then in propria persona) filed no opposition. The trial court granted the motion and entered judgment for defendant. Plaintiff appeals. We shall affirm.

STANDARD OF REVIEW

A defendant moving for summary judgment must show that the plaintiff cannot establish one or more elements of the cause of action or cannot refute an affirmative defense established by the defendant. (Code Civ. Proc., 437c, subd. (o); undesignated section references are to the Code of Civil Procedure.)

From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, fn. omitted.) Once the defendant has met its burden of production on summary judgment, the burden shifts to the plaintiff to show a triable issue of material fact. The plaintiff may not do this by resting on the allegations of her complaint, but must set forth the specific facts showing that such a triable issue exists. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464 & fn. 4 (Parsons).)

Our review is de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

FACTUAL AND PROCEDURAL BACKGROUND

The complaint

Plaintiffs complaint, filed by counsel on January 5, 2005, alleged: On or about January 8, 2003, plaintiff was injured when defendant Matthew Greene recklessly failed to yield to plaintiff on the trail on which she was skiing, leading to a collision which propelled her 25 feet in the air and caused her to suffer severe head injuries. As defendant Sugar Bowls invitee, plaintiff was owed a duty of care, which included the duty to warn [p]laintiff[] of potential danger and/or defects in design and/or construction and/or repair of the SUGAR BOWL CORPORATION and/or to maintain and/or to provide premises safe for the presence of persons in a class to which [p]laintiff belonged. Defendant Sugar Bowl breached this duty by negligently, recklessly, or intentionally failing to make conditions safe or to warn of their dangers, in particular in the area of the Trailblazer and Donners Way runs near the Jerome Hill Express lift wherein a large mound obscures the view of skiers on either run.

The summary judgment motion

After answering the complaint, defendant moved for summary judgment on February 17, 2006, on two theories: primary assumption of risk, and express assumption of risk and release of liability pursuant to the terms of plaintiffs lift ticket.

Citing to plaintiffs deposition and answers to special interrogatories, the declaration of defendants Director of Ski

Patrol, Jim Zaloga, and a diagram and photographs of the purported accident site, defendants separate statement of undisputed material facts alleged in part:

Before the incident, plaintiff had skied a total of approximately 450 days in her life. She had no recollection of the incident.

On the day of the incident, defendant Greene was skiing for the first time that season at Sugar Bowl. Before the incident, Sugar Bowl had no information that Greene would ski so as to harm other skiers or that he had been involved in any other skiing accident.

The collision occurred in a relatively flat, open area, on a clear day with excellent visibility.

Proceedings on the motion

Plaintiff did not file opposition to the motion.

The motion was heard on May 2, 2006. Plaintiff appeared at the hearing in propria persona and argued the matter.

The trial courts order after hearing states: After full consideration of defendants motion, to which plaintiff did not file any opposition, and the parties oral arguments, the Court finds that there is no triable issue of material fact and that the moving party . . . is entitled to summary judgment as a matter of law.

The trial court entered judgment for defendant on August 8, 2006.

Plaintiffs motion to vacate the judgment

After retaining new counsel, plaintiff filed a motion to vacate the trial courts order and judgment under section 473, subdivision (b) (section 473(b)). Attaching her own declaration and that of her husband in support of the motion, plaintiff alleged that when served with the summary judgment motion after discharging her prior counsel, she had no idea of its legal significance. Because there was an already scheduled court date beyond the hearing date requested in the motion, she did not realize that the motion could result in the disposition of the case; she believed that the hearing date was simply an opportunity for her to inform the court that she wanted a jury trial.^[2]

The trial court denied the motion. The court observed that plaintiffs declaration and her husbands declaration conflicted as to whether plaintiff attempted to retain new counsel after she received the summary judgment motion. The court also concluded that a reasonable person in plaintiffs position would at least have read the dictionary definition of summary judgment and the relevant code section and realized that failure to respond to the motion could lead to the entry of

judgment against her; thus, her mistake or neglect in failing to oppose the motion was not excusable under section 473(b).^[3]

Plaintiff thereafter filed notice of appeal from the judgment. She contends the court should not have granted the motion for summary judgment. She does not challenge the courts denial of her motion to vacate.

DISCUSSION

Although the trial court could have granted defendants motion due to plaintiffs failure to file a separate statement opposing the motion ( 437c, subd. (b)(3)), it is clear that the court did not do so, but instead granted the motion because it was satisfied that defendant had met its burden of persuasion. Therefore, we review de novo to determine whether the facts alleged by defendant (and not controverted by plaintiff) prove as a matter of law that plaintiff cannot maintain her cause of action. In doing so, like the trial court, we deem true any facts alleged by plaintiff which defendant has not controverted. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534 (Slovensky).) We conclude that defendant is entitled to summary judgment because it has conclusively shown that this case is controlled by primary assumption of the risk. Therefore we need

not consider defendants alternative theory of express assumption of the risk.

Primary assumption of the risk bars recovery on the ground that the defendant had no duty to protect the plaintiff from the particular risk which caused injury. (Knight v. Jewett (1992) 3 Cal.4th 296, 308, 314-315; Cheong v. Antablin (1997) 16 Cal.4th 1063, 1066-1067 (Cheong).) As to active sports (the main venue in which the doctrine applies), primary assumption of the risk means that a defendant has no legal duty to eliminate risks inherent in a sport or to protect a plaintiff against them; however, a defendant has a duty not to increase the risks beyond those inherent in the sport. (Knight, supra, 3 Cal.4th at pp. 315-316; Lackner v. North (2006) 135 Cal.App.4th 1188, 1202 (Lackner); Solis v. Kirkwood Resort (2001) 94 Cal.App.4th 354, 364-365 (Solis).)

The risks inherent in snow skiing have been well catalogued and recognized by the courts. Those risks include injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris. They also include collisions with other skiers[.] [Citations.] (Lackner, supra, 135 Cal.App.4th at p. 1202; see also Cheong, supra, 16 Cal.4th at p. 1067; ODonoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193; Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 123 [collision with other skiers].)

Owners of ski resorts have a duty to warn patrons of dangerous conditions known to the owner but not apparent to the patron. (Lackner, supra, 135 Cal.App.4th at p. 1202; Solis, supra, 94 Cal.App.4th at p. 366.) But they have no duty to protect skiers from other skiers, unless they know or should have known that a skier was acting recklessly before colliding with another. (Lackner, supra, 135 Cal.App.4th at p. 1203.)

Here, plaintiff did not allege that defendant should have protected her from Greenes reckless conduct, and defendant presented uncontroverted evidence that it neither knew nor had reason to know of any such conduct by him. Plaintiff alleged only that defendant failed to protect her from a dangerous condition caused by its negligent design, construction, or maintenance: a large mound of snow obscur[ing] the view of skiers in the vicinity of the runs used by plaintiff and Greene. However, defendant controverted this allegation: according to the Zaloga declaration and the accompanying photographs, which Zaloga averred were taken on the accident date, the accident took place in a relatively open, flat area. Having examined the photographs, we agree that this is a fair characterization of the site they depict and that they show no large mound of snow which could have obscured plaintiffs or codefendants view. Thus, there are no facts alleged by plaintiff which we must deem true as uncontroverted. (Slovensky, supra, 142 Cal.App.4th at p. 1534.)

Because plaintiff did not object to this evidence, the trial court was required to deem it admissible, as are we. Because plaintiff did not controvert it, it conclusively establishes that plaintiff cannot overcome the affirmative defense of primary assumption of the risk.

Plaintiff asserts: [O]nly one fact in Sugar Bowls separate statement of undisputed facts even remotely relates to the layout or alignment of the resort, which is made an issue by the allegations of negligent and improper design and construction. That is statement no. 9, which states that the collision occurred in a flat, open area. However, because this statement No. 9 and its supporting evidence controverted the only fact plaintiff pleaded to show negligent and improper design and construction, (the mound of snow) it was sufficient. (See Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 794.)

So far as plaintiff now tries to argue that this evidence (or any other submitted by defendant) was legally insufficient to justify summary judgment, the argument is not cognizable on appeal. The rule invoked by plaintiff that the evidence submitted on a summary judgment motion should be viewed in the light most favorable to the nonmoving party (Lackner, supra, 135 Cal.App.4th at p. 1196) does not help her because that rule presumes that both parties have submitted evidence. (See Parsons, supra, 15 Cal.4th at p. 464 & fn. 4.)

DISPOSITION

The judgment is affirmed. Defendant shall receive its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

SIMS , Acting P.J.

We concur:

DAVIS , J.

MORRISON , J.

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^[1] Goodfield also named the other skier, Matthew Greene, as a defendant. He is not a party to this appeal.

^[2] As required by section 473(b), plaintiff also filed a proposed opposition to summary judgment, which included objections to evidence adduced by defendant on the motion. On appeal, however, plaintiff does not attempt to renew these objections. Therefore, we deem all of defendants evidence admissible.

^[3]On appeal, plaintiff does not challenge the trial courts denial of her section 473(b) motion.