ZUBRICK v. FORD

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Court of Appeal, Third District, California.

Kenneth J. ZUBRICK, Plaintiff and Appellant, v. Michael FORD, Defendant and Respondent.

No. C021146.

Decided: September 04, 1996

Louis A. Basile, Tahoe City, for Plaintiff and Appellant. Coddington, Hicks & Danforth, Lee J. Danforth and David K. Levine, Redwood City, for Defendant and Respondent.

Plaintiff, an injured skier, sued another skier for negligence.   Plaintiff appeals from a summary judgment granted in favor of defendant, based on a lack of duty between skiers.   The Skier Responsibility Code of Placer County (Placer County Code, §§ 12.130 et seq., hereafter Skier Code), enumerates certain duties for skiers, the violation of which may be a crime.   We conclude a breach of such duties raises a presumption of negligence, which obviates defendant's theory of “primary assumption of risk.”   We shall reverse.

BACKGROUND

The undisputed facts are that plaintiff and defendant were skiing at approximately 15–25 miles per hour, they collided and plaintiff was seriously injured.   Plaintiff's “disputes” to these facts amounted to quibbles about the cited evidence.   Plaintiff proffered additional facts, disputed by defendant, that he was downhill of defendant, that defendant rear-ended him.

 Under the “primary assumption of risk” doctrine, as stated in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724, a person assumes the inherent risks of an activity.   In many cases sports co-participants owe no duty to avoid injuring each other, lest the essence of the sport be sapped.  (Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1206, 14 Cal.Rptr.2d 670.)   A plaintiff may recover if and only if the defendant's conduct was at least reckless.  (Knight, supra, 3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.) 1  In this case the trial judge ruled plaintiff failed to raise a triable issue whether defendant's conduct was reckless and plaintiff does not contest the point.

DISCUSSION

I. Presumption of Negligence.

Evidence Code section 669 (section 669) provides that “The failure of a person to exercise due care is presumed” upon the breach of a statute, ordinance, or regulation in certain cases. (§ 669, subd. (a).)  The presumption is rebuttable by proof, inter alia, that the breacher “did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law[.]”  (§ 669, subd. (b)(1).)   The presumption applies in cases, inter alia, where a person violates an ordinance, the violation proximately caused injury, the injury was “of the nature” the ordinance sought to prevent and the injured party “was one of the class of persons for whose protection the [ordinance] was adopted.”   (§ 669, subd. (a)(1–4).)  Section 669 codified the “negligence per se” doctrine.  (See Vesely v. Sager (1971) 5 Cal.3d 153, 164–165, 95 Cal.Rptr. 623, 486 P.2d 151, 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 818–830, pp. 170–187.)

 Section 669 speaks of establishing a failure to exercise due care, not establishing a tort duty of care.   Nevertheless, when a plaintiff brings himself within the class protected by the statute, a defendant who violates the statute causing injury breaches a duty of care.  (Vesely v. Sager, supra, 5 Cal.3d at pp. 164–165, 95 Cal.Rptr. 623, 486 P.2d 151.   See Ford v. Gouin, supra, 3 Cal.4th at p. 368, 11 Cal.Rptr.2d 30, 834 P.2d 724 (conc. & dis. opn. of George, J.) [if plaintiff is in a protected class and defendant violates statute, “it would follow, under Evidence Code section 669, that defendant violated his legal duty of care to plaintiff”].)   A statute may impose a duty of care whether or not it expressly provides for civil liability.  (Vesely, supra, 5 Cal.3d at p. 164, 95 Cal.Rptr. 623, 486 P.2d 151;  Sierra–Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 333, 277 Cal.Rptr. 753.)   Contrary to an implication by defendant section 669 draws no distinction between statutes and ordinances.

 The complaint alleged defendant violated the Skier Code.   Defendant proffered a copy of the Skier Code.  (See County of Colusa v. Charter (1989) 208 Cal.App.3d 256, 262, 256 Cal.Rptr. 45 [one who relies on ordinance must prove it exists].)

The Skier Code sets out three categories of duties, including a long list of duties, a violation of which is an infraction (§§ 12.134, 12.138(b)).2  This portion of the code states in part:  “Skiers shall have the following duties ․:  [¶] 1.   It shall be unlawful for any person to ski faster than is safe and it shall be the duty of all skiers to ski in a safe and reasonable manner, under sufficient control to be able to stop or avoid other skiers or objects.”  (§ 12.134.)

Plaintiff must demonstrate that the Skier Code established a duty in his favor. (§ 669;  see Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 590, 177 P.2d 279 [predating Evid.Code], overruled on other grounds, Alarid v. Vanier (1958) 50 Cal.2d 617, 622–624, 327 P.2d 897.)   The Skier Code is designed in part to promote safety on the ski slopes and hence plaintiff is within the class of persons designed to be protected.   (Shahinian v. McCormick (1963) 59 Cal.2d 554, 565, 30 Cal.Rptr. 521, 381 P.2d 377 [ordinance regulating speed of water-skiing boats protects water-skiers].   See Ford v. Gouin, supra, 3 Cal.4th at p. 363, 11 Cal.Rptr.2d 30, 834 P.2d 724 (conc. opn. of Kennard, J.).)   By virtue of the presumption of negligence provided by section 669, defendant is not entitled to summary judgment because he did not establish obedience to the Skier Code (that he was skiing “in a safe and reasonable manner, under sufficient control to be able to stop or avoid other skiers or objects”) (§ 12.134), nor that he did what a reasonably prudent person, desiring to obey the Skier Code, would have done.   (§ 669.)

II. Primary Assumption of Risk.

 Defendant perceives a shield in Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and Ford v. Gouin, supra, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724.

Defendant argues Knight preempts the Skier Code.   An ordinance which defined primary and secondary assumption of risk would be preempted.  (Cal. Const., art. XI, § 7 [county may make ordinances “not in conflict with general laws”].   But see Chavez v. Sargent (1959) 52 Cal.2d 162, 177, 339 P.2d 801 [no case found “which discusses ․ whether an ordinance which conflicts, not with statutory, but with decisional, law on a subject of state-wide concern, violates” constitutional provision].)   However, the Skier Code does not alter the Knight rule, nor, contrary to a claim by defendant, does it alter any burden of proof.

 Defendant also points to the fact that the Skier Code defines certain inherent risks of skiing, including “collision with other skiers and a skier's failure to ski within the skier's own ability.” 3  (§ 12.131(a).)   The Skier Code states skiers “assume and accept the inherent risks of such activities insofar as the risks are reasonably obvious, foreseeable or necessary to the activities.”  (§ 12.132.)   As construed by defendant, this provision means the safety standards set out in the Skier Code do not establish tort duties.

However, the tort duty is not imposed by the Skier Code, it is imposed by section 669, a state statute which cannot be altered by Placer County.   (Cal. Const., art. XI, § 7;  Sherwin–Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897–898, 16 Cal.Rptr.2d 215, 844 P.2d 534.)   Placer County lawfully established rules of conduct for skiers by local ordinance.   Pursuant to section 669, such rules are elevated into tort duties of care.   If defendant's interpretation of Skier Code section 12.132 is correct, section 12.132 conflicts with a state statute, section 669 and, hence, is preempted.   In this case section 669 renders the common law rules of assumption of risk inapplicable to this suit.

DISPOSITION

The judgment is reversed.   Costs to plaintiff.

FOOTNOTES

1.   We are not faced with a suit against the ski resort.   An entity in control of a sports facility may have greater duties of care than those imposed upon participants.   A batter may have no duty to avoid throwing a bat but the stadium may have a duty to protect patrons from being hit by it.  (Knight v. Jewett, supra, 3 Cal.4th at p. 317, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Because the question of the resort's duty, if any, is not presented in this case, we express no view thereon.

2.   The first category contains two duties (not to leave an accident and not to ski in certain areas), violation of which is a misdemeanor (§§ 12.133, 12.138(a)).   The third category, with no stated punishment, in part codifies the custom that uphill skiers yield to downhill skiers (§ 12.135, subds. 3, 4).   See LaVine v. Clear Creek Skiing Corp. (10th Cir.1977) 557 F.2d 730;  Ninio v. Hight (10th Cir.1967) 385 F.2d 350.   Plaintiff raises no claim regarding these categories of duties.It appears the Skier Code was patterned after some of the ski statutes used in other states.   At least four other counties within this appellate district (where most of California's downhill skiing occurs) have adopted similar codes.  (Alpine Co.Ord. No. 562–94;  Amador Co.Code, §§ 12.48.101 et seq.;   El Dorado Co.Code, § 9.20.010;  Nevada Co.Code, § G–IV, art. 19.)

3.   We agree the risk of collisions inheres in downhill skiing.   (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12, 45 Cal.Rptr.2d 855;  Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1394, 1396, 36 Cal.Rptr.2d 418;  Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751–752, 33 Cal.Rptr.2d 732;  McDaniel v. Dowell (1962) 210 Cal.App.2d 26, 36, 26 Cal.Rptr. 140.)

MORRISON, Associate Justice.

BLEASE, Acting P.J., and SIMS, J., concur.