Filed 4/8/15 Rees v. Crawford 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)



MARIJANE REES,                                                                               C073460

                   Plaintiff and Appellant,                                    (Super. Ct. No. SCV0030003)

         v.

CAITLIN CRAWFORD,

                   Defendant and Respondent.




         Appellant Marijane Rees was injured during the performance of her job as a ski
instructor at Alpine Meadows Ski Resort. She brought a negligence action against the
skier who collided with her, Caitlin Crawford. The trial court granted Crawford’s motion
for summary judgment on the grounds Rees had assumed the risk of being injured from a
collision with another skier, and Crawford’s conduct was not reckless because it was
neither completely outside the range of ordinary activity involved in the sport, nor done
with a deliberate disregard of the high degree of probability that an injury would result.
         Rees argues there was sufficient evidence to raise a triable issue of fact as to
whether Crawford’s conduct was reckless. We disagree and shall affirm the judgment.



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                     FACTUAL AND PROCEDURAL BACKGROUND
          Rees worked for Alpine Meadows Ski Resort as a supervisor for the adult ski
school, and had been a ski instructor for 27 years. At the time of the incident, she was
instructing two students on the Sherwood run, which is a run of intermediate difficulty.
She and her students were on the far left side of the run, practicing slow, controlled turns,
with Rees in the lead, and the two students following her. Rees was wearing an orange
jacket.
          Crawford had been skiing since the age of six, and was capable of skiing expert
runs. On the day of the accident, she was skiing with her boyfriend, and because he was
a faster skier, they had planned to meet at the bottom of the run. As Crawford was skiing
down the run, she noticed three people who appeared to be standing in a circle to her left,
approximately 25 feet left of the center of the run, and approximately 15 to 20 feet from
her. At this point, she had completed about three-quarters of the run. When she saw the
group of three, the slope was starting to level off, and she could see the chairlift. She
started to ski straight in order to have enough momentum to make it to the chairlift. Her
boyfriend was further down the mountain on the right side. Crawford was going to ski
past the group of three on her left, when she saw Rees in her peripheral vision starting to
do “figure eights.” She stated that Rees went directly in front of her and she had no time
to react. She screamed and they collided.
          As Rees was on her sixth consecutive turn, she heard a shout and almost
simultaneously felt the impact. She never saw Crawford until Crawford was almost on
her. Rees flew up and came down on her left hip, then rolled and landed again on her
right shoulder. Her resting point was approximately 20 feet from the point of impact.
Rees fractured her femur, requiring insertion of a titanium rod, “smashed” her bicep
tendon, and tore her rotator cuff.




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       The Sherwood run was not crowded the day of the collision. Sherwood run is
wide in the area where the collision occurred. The ski conditions were good and
visibility was clear.
                                       DISCUSSION
                                            A.
                                    Standard of Review
       “The standard of review for summary judgment is well established. The motion
‘shall be granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.’
(Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met his burden of showing
that a cause of action has no merit by establishing that one or more elements of a cause of
action cannot be established or that there is a complete defense. [Citation.] [¶] We
independently review an order granting summary judgment, viewing the evidence in the
light most favorable to the nonmoving party.” (Lackner v. North (2006) 135 Cal.App.4th
1188, 1196 (Lackner).)
                                          B.
                         Crawford Met Burden of Going Forward
       Rees first argues that Crawford presented insufficient evidence to go forward with
her summary judgment motion. She recognizes the shifting burden of production in a
motion for summary judgment. “[G]enerally, the party moving for summary judgment
bears an initial burden of production to make a prima facie showing of the nonexistence
of any triable issue of material fact; if he carries his burden of production, he causes a
shift, and the opposing party is then subjected to a burden of production of his own to
make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
       Rees argues that Crawford’s separate statement of undisputed material facts did
not demonstrate sufficient facts to shift the burden to Rees to show that that there were



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triable issues of fact. Crawford’s separate statement of undisputed material facts showed
that the incident occurred as a result of a collision between two skiers, that plaintiff alone
had witnessed several such collisions per year (implying skier collisions were an inherent
risk of the sport), that Rees did not see Crawford until immediately before the collision
(implying she could not estimate Crawford’s speed from having viewed her skiing), that
the collision did not occur in a rest area or while one skier was standing still, that no
evidence indicated Crawford was under the influence of alcohol at the time of the
collision or that she intentionally ran into Rees, and that the assumption of risk provisions
of the Placer County Code applied.
       Where the defendant is the party moving for summary judgment, he (or she) “ ‘has
met’ his ‘burden of showing that a cause of action has no merit if’ he ‘has shown that one
or more elements of the cause of action . . . cannot be established, or that there is a
complete defense to that cause of action. Once the defendant . . . has met that burden, the
burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts
exists as to that cause of action or a defense thereto.’ ” (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 849.) “The threshold element of a cause of action for negligence
is the existence of a duty to use due care toward an interest of another that enjoys legal
protection against unintentional invasion.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th
370, 397.) Thus, where a defendant establishes no duty existed to use due care toward
the plaintiff, the defendant has met the burden of going forward, and the burden shifts to
the plaintiff to show a triable issue of fact exists.
       Under the doctrine of assumption of risk, a participant in a recreational sports
event “owes no duty of care to another participant to avoid careless conduct that
frequently occurs during vigorous participation in the sport.” (Neighbarger v. Irwin
Industries, Inc. (1994) 8 Cal.4th 532, 537.) A defendant who demonstrates that the
doctrine of assumption of risk applies has met the burden of showing that the cause of
action has no merit because one element of the cause of action, the element of duty,

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cannot be established. The sport of snow skiing is an activity to which the doctrine of
assumption of risk applies, especially when the injury occurs from the risk of colliding
with another skier. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 467.)
       Sports participants breach a legal duty of care to other participants “only if the
participant intentionally injures another player or engages in conduct that is so reckless as
to be totally outside the range of the ordinary activity involved in the sport.” (Knight v.
Jewett (1992) 3 Cal.4th 296, 320, fn. omitted.) Recklessness is the “ ‘ “deliberate
disregard” of the “high degree of probability” that an injury will occur. [Citations.]
Recklessness, unlike negligence, involves more than “inadvertence, incompetence,
unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious
choice of a course of action . . . with knowledge of the serious danger to others involved
in it.” [Citation.]’ [Citation.]” (Towns v. Davidson, supra, 147 Cal.App.4th at p. 470.)
       Thus, by establishing that the case involved a collision between two skiers,
Crawford met her burden of demonstrating that Rees could not establish all of the
elements of a prima facie case for negligence, since the doctrine of assumption of risk
negated the element of duty. Crawford also presented evidence that her conduct was not
reckless by showing that the collision occurred while both parties were actively skiing in
an area designated for skiing, that she did not intentionally run into Rees, and that there
was no evidence Crawford was under the influence of alcohol. It was then incumbent
upon Rees to show that a triable issue of fact existed as to whether the doctrine of
assumption of risk was negated by evidence of Crawford’s reckless conduct.
                                         C.
                     No Evidence Crawford’s Conduct Was Reckless
       Rees acknowledges that the assumption of risk doctrine applies to the sport of
snow skiing, but argues there was a triable issue whether Crawford’s conduct was
reckless. To show that Crawford’s conduct was reckless, Rees “must show the conduct
was ‘so reckless as to be totally outside the range of the ordinary activity involved in the


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sport.’ [Citation.]” (Towns v. Davidson, supra, 147 Cal.App.4th at p. 470.)
“ ‘ “[C]onduct is totally outside the range of ordinary activity involved in the sport (and
thus any risks resulting from that conduct are not inherent to the sport) if the prohibition
of that conduct would neither deter vigorous participation in the sport nor otherwise
fundamentally alter the nature of the sport.” [Citations.]’ [Citation.]” (Ibid.)
       Rees’s allegations of recklessness were that Crawford was skiing at a speed that
was in excess of her abilities and was excessive for the conditions. The evidence Rees
adduced to support her claim that Crawford had been skiing at an excessive rate of speed
was Rees’s own judgment that the force of the impact implied Crawford had been going
fast, and the declaration of one of Rees’s students, who stated he could not see why
Crawford hit Rees other than “the fact that she was going too fast.”
       There was no evidence Crawford was skiing at a speed that was excessive for the
conditions. It was undisputed that the conditions were good. It was sunny and the
visibility was clear that day. The snow was groomed and not icy. The slope was not
crowded, and was wide at the point of impact.
       Although Rees opined that it was a “possibility” that Crawford was skiing beyond
her ability since she had been unable to stop, Crawford testified that she “felt absolutely
in control.” She stated she had been going at a speed that was safe for traffic, and that
she had been passed by other skiers. She had not been skiing at one of her faster speeds.
       Even assuming Crawford was skiing at an excessive speed, this court has held that
fast, aggressive skiing does not constitute reckless behavior. In Towns v. Davidson,
supra, 147 Cal.App.4th 461, an employee of Mammoth Mountain Ski Area collided with
another skier. The plaintiff skier claimed on appeal from summary judgment that the
employee’s fast and aggressive skiing constituted recklessness. We stated: “[Defendant]
was skiing quickly and aggressively. . . . These facts do not establish conduct totally
outside the range of ordinary activity involved in the sport of skiing. There is no
evidence [Defendant] consciously and deliberately chose to ski in a manner that

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knowingly introduced risks of injury foreign to those inherent in the sport of skiing. [¶]
Moreover, were we to conclude [Defendant’s] conduct was so reckless as to be totally
outside the range of ordinary activity involved in the sport of skiing, we would call into
question vigorous skiing and fundamentally alter the nature of the sport. For many, the
thrill of the sport is to ski as fast and as aggressively as reasonably possible. Assigning
liability to [Defendant] on these facts would eliminate that aspect of the sport.” (Id. at p.
471.)
        Thus, assuming Crawford was skiing too fast, such conduct alone is not reckless
because it is not “ ‘totally outside the range of ordinary activity involved in the sport,’ ”
fast skiing being conduct that is inherent to the sport, and deterring fast skiing would
“ ‘fundamentally alter the nature of the sport.’ ” (Distefano v. Forester (2001) 85
Cal.App.4th 1249, 1261.)
        Rees relies heavily on our holding in Lackner, supra, 135 Cal.App.4th 1188.
Lackner is distinguishable. In that case, the plaintiff was not skiing, but was standing in a
largely deserted area used by skiers and snowboarders to rest before descending to the
bottom of the slope when the accident occurred. (Id. at pp. 1193, 1194.) The defendant,
who was there to compete in a later snowboarding championship, was racing down the
mountain with other members of his snowboard team, and looking back to determine
their positions. (Id. at p. 1194.) The run the snowboarders were on was not a designated
training run. (Id. at p. 1200.) The impact of the collision catapulted the two skiers 50
feet into the air before they slid down the mountainside. (Id. at p. 1195.) The ski area
revoked the defendant’s lift ticket pursuant to its policy to do so when a skier or
snowboarder engages in reckless conduct or fast skiing, or collides with another skier,
and the defendant was suspended from the snowboarding championship in which he had
come to compete. (Id. at pp. 1194-1195.)
        Lackner recognized that “[i]nadvertent collisions with coparticipants who
carelessly cross paths are an inherent risk of many sports,” including skiing. (Lackner,

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supra, 135 Cal.App.4th at p. 1199.) However, Lackner held there was a triable issue of
fact as to whether the collision was inadvertent and unavoidable, since the defendant in
that case had been speeding without looking where he was going, despite the fact he was
unfamiliar with the area. (Id. at p. 1201.) We stated that because he was an expert
snowboarder, he had the skill to avoid people standing in the area, and concluded that he
was not paying attention to his surroundings. (Ibid.) We concluded there was a triable
issue as to whether the defendant had been reckless because of the cumulative evidence
that he was speeding, he was on a flat rest area, he was not looking where he was going,
and he was unfamiliar with the area. (Ibid.)
       The same constellation of facts does not exist here. Crawford did not collide with
a person at rest, but someone who was herself in motion, however slow. The collision
did not occur in a rest area, but on the slope. Crawford was not racing anyone.
Accepting Rees’s contention that Crawford was skiing fast, there was no evidence that
she was not paying attention to her surroundings. Rees argues that just as the defendant
in Lackner was not paying attention because he looking behind him to see where his
teammates were, Crawford was not paying attention because she was looking at her
boyfriend. It is true that Crawford’s boyfriend was ahead of her on the right, but she
testified she could see both her boyfriend and the three people in the class at the same
time. This is an indication Crawford was paying attention to where she was going.
Looking down the run is very different from looking back.
       We are unpersuaded by Rees’s argument that Crawford’s violation of the Placer
County Skier Responsibility Code demonstrates that Crawford’s conduct “was totally
outside the range of the ordinary activity in the sport of skiing.” The Skier Responsibility
Code lists several “duties” of skiers, one of which is to ski in a safe and reasonable
manner, under sufficient control to be able to stop or avoid other skiers or objects.”
(Placer County Code, § 9.28.050, subd. A.) The Supreme Court has held that the
“duties” set forth in the Placer County Code do not govern tort liability between skiers.

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(Cheong v. Antablin (1997) 16 Cal.4th 1063, 1069.) Moreover, the code also provides
that a person assumes and accepts the “inherent risks” of skiing, which the code defines
to include “collision with other skiers and a skier’s failure to ski within the skier’s own
ability.” (Placer County Code, §§ 9.28.020-9.28.030.)
       The trial court properly found that mere evidence of fast skiing is insufficient to
show reckless conduct, and that such evidence “could arguably rise only to negligent
conduct, which is inherent in the sport of skiing.”
                                       DISPOSITION
       The judgment is affirmed. Defendant is awarded her costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1), (2).)




                                              BLEASE                    , Acting P. J.


We concur:


         MURRAY                     , J.


         DUARTE                     , J.




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