Cheong v. Antablin

WILKIE CHEONG, Appellant v. DREW R. ANTABLIN, Respondent C.A. 2nd, Div. 2, No. B089295 S057369 California Supreme Court Filed January 22, 1997
        Appellant`s petition for review GRANTED.


[Editor's Note - The above mentioned Court of Appeal case has been granted review by the California Supreme Court. For your convenience we reprint below the Daily Journal's Ruling column brief which summarized the earlier decision of the lower court.]


TORTS

Primary Assumption of Risk Bars Skier From Recovering For Negligence After Collision With Another Skier.
        The C.A. 2nd has held that summary judgment in favor of a defendant was proper in a negligence action from a collision between skiers due to the primary assumption of the risk doctrine.
        Wilkie Cheong and Drew Antablin had been friends for 17 years. During the course of the friendship they skied together many times. On April 11, 1991, Cheong and Antablin were skiing down a slope at Alpine Meadows Ski Resort when they collided. Antablin contended that he was skiing too fast for his comfort level and for existing conditions. He turned to his right to slow down and unintentionally collided with Cheong who suffered a shattered fibula and a shattered tibia. Cheong filed an action for general negligence in March 1992. Antablin raised the affirmative defense of assumption of the risk and filed a motion for summary judgment. The motion was initially denied but later granted after a renewed motion. Cheong contended that the primary assumption of the risk doctrine did not apply to the facts of the case and because Antablin violated a statutory duty owed to Cheong and that a local county ordinance precluded the application of the doctrine.
        The C.A. 2nd affirmed. "There are two distinctions to be made in assumption of risk situations: '(1) those instances in which the assumption of the risk doctrine embodies a legal conclusion that there is "no duty" on the part of the defendant to protect the plaintiff from a particular risk - the category of assumption of risk that the legal commentators generally refer to as "primary assumption of the risk" - and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty - what most commentators have termed "secondary assumption of risk." ' " Knight v. Jewett held that a ski resort does not have a duty to protect a skier from ski conditions on the slopes but that it did have a duty to provide safe towropes. Knight also held that a sports participant is not liable to a co-participant for ordinary careless conduct committed during the sport but could be liable for intentionally injuring the co-participant or engaging in reckless conduct outside the range of the ordinary activity involved in the sport. Cheong's contention that the primary assumption of risk doctrine did not apply because skiing does not involve co-participants was rejected. "Collision with other skiers is considered an inherent risk of the sport." Freeman v. Hale held "that a skier does not have a duty to avoid an inadvertent collision with a fellow skier under primary assumption of the risk principles." It was undisputed that Antablin did not engage in conduct outside the range of ordinary skiing and did not intend to collide with Cheong. The Placer County Code regarding skiers' duties did not create a duty of care for skiers which overcame the assumption of risk doctrine.
        Cheong v. Antablin, C.A. 2nd, Div. 2, No. B089295, filed October 9, 1996, by Nott, J.
        The full text of this case appears in 96 Daily Journal D.A.R. 12407, October 11, 1996.


98 Daily Appellate Report