State high court should say what ‘gross negligence’ means

Think of this case the next time you are whizzing down the slopes at the annual Don Galine Tahoe seminar or the DRI fall conference (having opted for fresh powder instead of that rousing 8 a.m. panel on Medi-Cal liens).

Back in 2011, Kathy Willhide-Michiulis of Saugus, California, was snowboarding at Mammoth Mountain Ski Area. A nearby snowcat in the center of the trail, with its snow-grooming tiller whirling, took a sharp left turn in front of her without warning. It ran over her, dragging her underneath and pinning her between the back of the snowcat and the tiller, which has hundreds of sharp blades. She suffered severe injuries. Her left leg had to be amputated above her knee.

To any observer, and certainly any skier, Mammoth was clearly negligent -- grossly negligent. Running a tiller on an open slope violates both industry standards and Mammoth Mountain's own training manual ("Never operate the tiller when the skiing public is present"). In addition to the sudden turn, the driver admitted that he failed to use the turn signal and that he had no "spotter" operating in front of him to look out for skiers and snowboarders.

After years of procedural wrangling in the suit Willhide-Michiulis brought against the resort, the Mono County Superior Court ruled on summary judgment in 2016 that, because she and her husband had signed "assumption of risk" waivers not to sue for negligence when they bought their season passes, the plaintiffs had to prove gross negligence. And the court found that Mammoth Mountain wasn't grossly negligent -- that what happened to Willhide-Michiulis was an inherent risk of snowboarding. To make matters worse, the judge ordered her to pay the resort's legal costs.

The Court of Appeal affirmed the superior court this past June. 2018 DJDAR 7020. On Aug. 22, Willhide-Michiulis' lawyers asked the California Supreme Court to hear her appeal (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, S250776). The case is important to all of us and the court should consider it.

In 2007, the California Supreme Court defined gross negligence as a "want of even scant care" or "an extreme departure from the ordinary standard of conduct." City of Santa Barbara v. Superior Court, 41 Cal. 4th 747 (2007). And gross negligence is generally a triable issue of fact. See Chavez v. 24 Hour Fitness USA, Inc., 238 Cal. App. 4th 632 (2015).

Unfortunately, Court of Appeal rulings on the matter don't precisely square with the high court's definition, and the varying concepts of gross negligence have caused confusion that the court can clear up. For lawyers, a ruling would clarify how the state high court will treat gross negligence. For consumers, it would help answer the question of how far California companies can go in harming someone and still avoid any liability.

The Willhide-Michiulis case provides the perfect opportunity to do that and the Supreme Court should help us all and take it up.

At its heart, the question is what is the "risk" that we are all agreeing to assume when we sign these waivers before, say, climbing a rock wall (not me) or jumping into a bumper car (definitely me) or hopping on a zip line (yes!!). Assumption of risk pertains only to those risks necessary to engage in that particular sport or activity.

For example, in one case a court ruled against a woman who had struck her head on another piece of gym equipment after she fell off the back of a treadmill. The court said what happened was an inherent risk of working out in a gym. But the California Court of Appeal panel reviewing the case disagreed. The owner's manual for the treadmill called for six feet of clear space behind the treadmill for safety's sake -- and there were only four feet. The gym had put the customer at unnecessary risk. Jimenez v. 24 Hour Fitness, 237 Cal. App. 4th 546 (2015).

In Willhide-Michiulis' case, being run over by a recklessly driven snowcat, with its tiller running, in violation of industry standards and the company's manual, hardly seems like an inherent risk of recreational snowboarding. It's gross negligence. If I am zip lining, maybe the cable breaks, and I take a bad fall. Maybe the landing deck is obstructed and I injure my leg coming in. All might arguably be considered inherent risks. But I don't expect a 747 to slam into me when I am whipping through the air just above the treetops, and -- as a recently retired snowboarder myself -- I certainly don't expect the snowcat to turn into my path without any warning, on an open run.

At the very least, because the law in California says it's up to a jury to decide whether the company engaged in gross negligence, the court should send the case back to the lower court so a jury can make that decision. We all need to know that we have somewhere to turn when companies behave so recklessly and unexpectedly.