BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 564 (Monning)
As Amended April 16, 2013
Hearing Date: May 7, 2013
Fiscal: No
Urgency: No
RD
SUBJECT
Ski Resorts: Safety Plans: Accident Reports
DESCRIPTION
This bill would require ski resorts to prepare an annual safety
plan, as specified, and to make it available to the public at
the ski resort, upon request, the same day the request is
received. The bill would also require the ski resort to make
available to the public, a monthly report containing the
following information, if known, within 30 days of receiving a
request:
a description of each incident resulting in a fatality that
occurred on the ski resort property and resulted from a
recreational activity, such as skiing, snowboarding, or
sledding, that the resort is designed to provide; and
the age of each person fatally injured in an incident
identified pursuant to the above, the type of recreational
activity involved, the cause of the fatality, the location at
the resort where the incident occurred, and the name of any
facility where medical treatment was provided.
This bill provides that the above requirements do not change the
existing assumption of risk doctrine as it applies to ski
resorts.
BACKGROUND
Generally speaking, under tort law, every individual has a duty
to exercise ordinary care and failure to exercise reasonable
care under the circumstances results in liability. (Parsons v.
Crown Disposal Co. (1997) 15 Cal.4th 456, 472; Rowland v.
(more)
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Christian (1968) 69 Cal.2d 108, 112.) California law also
provides certain affirmative defense to liability, however,
where there has been contributory negligence or an assumption of
risk on the part of the person injured. (See Civ. Code Sec.
1714(a).) Essential elements of the defense of assumption of
risk are (1) whether there has been a voluntary acceptance of
risk and (2) whether such acceptance, either express or implied,
has been made with knowledge and appreciation of risk. (Gomes v.
Byrne (1959) 51 Cal.2d 418.)
Not only can the assumption of risk be express or implied, but
California law recognizes both a primary assumption of risk
doctrine and a secondary assumption of risk doctrine-the
applications of which depend on whether or not the defendant
owes a duty of care to the plaintiff. Under the doctrine of
primary assumption of risk, which is most frequently applied to
sports, a plaintiff is completely barred from recovering damages
from a defendant where the defendant does not owe the plaintiff
any duty to protect the plaintiff from a particular risk of harm
and the plaintiff assumes that risk. In contrast, the doctrine
of secondary assumption of risk applies if the defendant does
owe a duty of care to the plaintiff with respect to a particular
risk, and under this specific doctrine, the defendant is not
entirely relieved of liability for an injury proximately caused
by the defendant's breach of that duty; instead, the plaintiff's
recovery is reduced in proportion to the extent the plaintiff
knowingly encountered that risk.
The question of whether or not a person has assumed a particular
risk can be implicated in the context of inherently dangerous
activities. Existing law generally recognizes that some
activities (oftentimes, sports) are inherently dangerous and
involve certain "inherent" or "known" risks. A person who
engages in such inherently dangerous activities is often said to
assume those known risks-which can include certain injuries.
Thus, it is not uncommon for a defendant to raise an assumption
of risk defense in cases involving inherently dangerous
activities, such as skiing.
This bill would require ski resorts to provide specified
information relating to safety measures and fatalities at their
resorts. In doing so, however, the bill would specify that it
does not change the existing assumption of risk doctrine as it
applies to ski resorts.
This bill was heard by the Senate Health Committee on April 16,
2013 and passed out on a vote of 7-2.
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CHANGES TO EXISTING LAW
Existing law provides that everyone is responsible, not only for
the result of his or her willful acts, but also for an injury to
another caused by his or her lack of ordinary care or skill in
the management of his or her property or person, except so far
as the latter has, willfully or from lack of ordinary care,
brought the injury upon himself or herself. (Civ. Code Sec.
1714(a).)
Existing case law permits the assumption of risk doctrine to be
raised as a defense to the general rule that if a person injures
another, the person may be held liable for the other's injuries.
The defense "rests upon the plaintiff's consent to relieve the
defendant of an obligation of conduct toward him, and to take
his chances of harm from a particular risk." (Alcorn v. Davies
(1959) 173 Cal.App.2d 569, 574-575.)
This bill would require ski resorts to prepare an annual safety
plan, in conformance with requirements of federal regulations
for ski resorts on federal property. The ski resort must make
the annual report available to the public at the ski resort,
upon request, the same day the request is received.
This bill would require ski resorts to prepare and make
available to the public, a monthly report, within 30 days of
receipt of a request, containing the following information, if
known:
a description of each incident resulting in a fatality that
occurred on the ski resort property and resulted from a
recreational activity, such as skiing, snowboarding, or
sledding, that the resort is designed to provide; and
the age of each person fatally injured in an incident
identified pursuant to the above, the type of recreational
activity involved, the cause of the fatality, the location at
the resort where the incident occurred, and the name of any
facility where medical treatment was provided.
This bill would prohibit the above monthly report from
identifying a deceased person by name or address.
The bill would provide that the above requirements do not change
the existing assumption of risk doctrine as it applies to ski
resorts.
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COMMENT
1. Stated need for the bill
According to the author:
Deaths and debilitating injuries occur every year at
California ski resorts. The actual number[s] of death are
known only to the resorts. They do not report this
information to any federal or state agency or make it
available to the public. The public assumes that resorts are
making all reasonable efforts to prevent accidents and reduce
the number of deaths as well as the number and severity of
injuries. However, there are no industry safety standards or
recommended practice. Recent independent research has shown a
high degree of variability and inconsistency of safety
practices between and within resorts. Patrons are asked to
accept broad waivers of resort liability when they purchase a
lift ticket or season pass. In light of such broad liability
waivers, they deserve to know what safety practices,
standards, policies[,] and procedures the resorts do or do not
employ. They also deserve to know the number of the deaths
that occur at the resorts. I am authoring SB 564 to assure
that the public has access to this information so that they
can make a fully informed decision about the risks they are
accepting and to assist them in their choice of resorts for
themselves and their families. If ski resorts expect patrons
to be personally responsible and assume liability for any
accidents that occur, then the consumer should be given as
complete and accurate information as possible about resort
safety management, deaths[,] and injuries.
2. Assumption of risk in inherently dangerous activities
This bill would require ski resorts to prepare certain reports
relating to safety and accidents at their resorts and make them
available to the public, as specified, in order to provide
consumers with the ability to make more informed choices in
selecting ski resorts to visit. Of significance for this
Committee, the bill also contains a provision providing it does
not change the existing assumption of risk doctrine as it
applies ski resorts.
As discussed in the Background, generally speaking, California
law holds everyone responsible for an injury to another caused
by his or her lack of ordinary care or skill in the management
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of his or her property or person. At the same time, however,
existing law recognizes an exception to this general rule
insofar as the injured person has, willfully or from lack of
ordinary care, brought the injury upon him or herself. (Civ.
Code Sec. 1714(a).) Under this exception, a defendant may bring
a defense under the assumption of risk doctrine, claiming that
an individual knew of and accepted the risks involved. This
defense "rests upon the plaintiff's consent to relieve the
defendant of an obligation of conduct toward him, and to take
his chances of harm from a particular risk." (Alcorn v. Davies
(1959) 173 Cal.App.2d 569, 574-575.)
This issue is not uncommon with respect to injuries suffered in
inherently dangerous activities, such as sports. The primary
assumption risk doctrine limits a defendant's liability when the
inherent risks of a sport cannot be eliminated without
destroying the sport itself. (Record v. Reason (1999) 73
Cal.App.4th 472, 480.) These sports include those "done for
enjoyment or thrill, requir[ing] physical exertion as well as
elements of skill, and involv[ing] a challenge containing a
potential risk of injury." (Id. at 482.) That being said, even
when assumption of the risk applies, "defendants generally do
have a duty to use due care not to increase the risks to a
participant over and above those inherent in the sport." (Knight
v. Jewett (1992) 3 Cal.4th 296, 316.)
Because the defense of assumption of risk rests on both the
plaintiff's knowledge of the risks and an implied or express
acceptance of those risks, it is not unforeseeable that a party
would attempt to argue the reports mandated by this bill have
implications for the assumption of risk doctrine in the ski
resort setting. Presumably, a defendant may attempt to argue
that because the injured person read the resort's report prior
to skiing at the resort, he or she consented to assuming the
risks of any and all the injuries or fatalities listed in the
read report-even if a particular fatality would not otherwise be
of a type that a court would otherwise consider to be an
inherent and assumed risk in skiing (imagine if part of a poorly
maintained ski lift were to fall on the head of a skier). To
avoid this or any other unintended consequences of these
reports, this bill includes language explicitly stating that the
bill is to have no impact on the existing law assumption of risk
doctrine as it applies to ski resorts.
The author writes that this bill "is a simple and
straightforward ski resort disclosure and consumer information
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bill; it does not change any current resort liability
protections, nor does it protect resort patrons from the
inherent risks associated with skiing and snowboarding. By
collecting and reporting safety plans and fatalities, the
resorts are merely informing the public of their site-specific
data. If consumers elect to access this site-specific data, it
in no way changes their assumption of risk. The information is
intended to help consumers select the best resort for their
individual needs and to inform lift ticket and season pass
purchasing decisions."
As a result, it appears the intent of the author and sponsor, in
including this provision, is to provide for these reports within
a vacuum in which the reports neither expand, nor limit, the
availability of the assumption of risk defense to the ski resort
(or inversely, any liability they might have) when a person is
injured while on their ski resort premises. In other words, the
mere existence and availability of these reports would not
operate to provide an automatic bar to recovery for any and all
injuries suffered on the ski resort that were listed in the
report.
3. Governors' vetoes of similar measures
SB 278 (Gaines, 2011) was nearly identical to this bill (it had
two additional requirements with respect to establishing
specified policies), but was vetoed by Governor Brown, as
follows:
This bill would make available to the general public a ski
resort's annual safety plan as well as information about any
fatal incidents. It would also require ski resorts to create
their own signage policy regarding skier information.
I believe such a measure is unnecessary--yet another exercise
of the State's regulatory power for objectives that, in the
ordinary course, are handled by private business or the people
themselves.
A previous bill, AB 1652 (Gaines, 2010) was also similar to this
bill. In vetoing that bill, Governor Schwarzenegger stated:
This bill would make available to the general public a ski
resort's annual safety plan and information on the fatal
incidents at the resort that resulted from recreational
activities. This bill would also require ski resorts to create
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their own signage policy regarding ski area boundaries, closed
areas and other skier information.
Many California ski resorts are located on US Forest Service
(USFS) land, and are already required to compile and file
safety and accident reports with USFS as well as maintain some
of this information in the resort management office. Ski
resorts in California also already mark their ski area
boundaries and trails with appropriate information. This bill
may place an unnecessary burden on resorts, without assurance
of a significant reduction in ski and snowboard-related
injuries and fatalities.
4. California Ski Resort Association neutral position
The California Ski Resort Association, representing all 25
California ski resorts, writes that while they strongly opposed
the prior versions of this bill, "[t]he current language
reflects part of a compromise that was developed in 2010 between
the sponsors of the bill and the CSIA at the direction of the
Senate Health Committee. This compromise language has been
passed to Governor Schwarzenegger in 2010 (AB 1652 - Jones), and
Governor Brown in 2011 (SB 278 - Gaines). Both Governor
Schwarzenegger and Governor Brown vetoed the bills contacting
the 'compromise' language. CSIA is concerned that the intent of
the sponsors is not reflected in the bill in its current form.
We respectfully request that the Senate Judiciary Committee
reconsider SB 564 if it is significantly amended in the
Assembly."
Support : American Nurses Association/California; California
Chapter of the American College of Emergency Physicians;
California Chiropractic Association; California Medical
Association; Traumatic Brain Injury Services of California; 7
individuals
Opposition (prior versions of the bill) : Association of
Professional Patrollers; Dodge Ridge Ski Area; Granlibakken
Conference Center & Lodge; Homewood Mountain Resort; Mammoth
Mountain Ski Area; Mountain High Resort; National Ski Areas
Association; National Ski Patrol, Inc.; North Lake Tahoe
Chamber/CVB/Resort Association; Snow Summit Ski Corporation;
Snow Valley Mountain Resort; Tahoe Donner; two individuals
HISTORY
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Source : California Ski & Snowboard Safety Organization
Related Pending Legislation : None Known
Prior Legislation :
SB 278 (Gaines, 2011), See Comment 3.
AB 1652 (Jones, 2010), See Comment 3.
Prior Vote : Senate Committee on Health (Ayes 7, Noes 0)
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