Charlene Vine v. Bear Valley Ski Company

In personal injury cases arising from sporting activities, a defendant cannot be
charged with a duty to protect the plaintiff from risks inherent in the sport. Those risks
are borne by the plaintiff as a matter of law, under the "primary assumption of risk"
doctrine. However, the defendant can be held liable for breaching the duty not to
increase the risks encountered by the plaintiff beyond the level inherent in the sport. This
is an aspect of "secondary assumption of risk," which operates as part of the comparative
fault scheme. The plaintiff's acceptance of the risk is weighed together with the
defendant's breach of duty as the trier of fact determines the parties' relative
responsibility for the injury. (Knight v. Jewett (1992) 3 Cal.4th 296, 314-316 (Knight);
Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004 (Kahn);
American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 36-37.)
Here, a jury was asked to determine whether a ski resort "was negligent in the
design, construction, testing, or supervision of the snow board jump on which plaintiff
was injured." The trial court refused to instruct the jury on assumption of risk, instead
giving ordinary negligence and contributory negligence instructions. This was reversible
error. Although assumption of risk has been "merged into the comparative fault scheme"

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in its secondary aspect (Knight, supra, 3 Cal.4th at p. 315), the doctrine still poses distinct
questions regarding the parties' relative responsibilities. These questions must be
properly framed for a jury.

We also hold that ski resort employees who are not covered by workers'
compensation for injuries sustained while participating in recreational activity on their
own initiative may not claim the protection of Labor Code section 2801. That statute
bars employers from raising assumption of risk as a defense in negligence actions by
employees injured in the course of their employment.

BACKGROUND

Charlene Vine suffered a broken back, resulting in paraplegia, when she fell while
attempting a snowboard jump at an employee party hosted by her employer, Bear Valley
Ski Company (Bear Valley) after the end of the public ski season. A Bear Valley
employee had reshaped the jump, using a snow cat, for use by guests at the party. Vine
sued Bear Valley, contending the jump was a dangerous condition that increased the risks
to snowboarders beyond those inherent in the sport. A jury awarded her $3,727,000 in
special damages and $713,000 in noneconomic damages. Vine moved for a new trial on
noneconomic damages. The trial court granted the motion, but ruled the judgment would
be affirmed if Bear Valley accepted an additur of nearly $5.3 million in noneconomic
damages. Bear Valley rejected the additur and appealed from both the judgment and the
order granting a new trial. We have consolidated the two appeals.

We discuss further procedural and factual details below, in connection with the
issues raised by Bear Valley. Bear Valley contends the trial court erred by: (1) ruling in
limine that workers' compensation was not Vine's exclusive remedy; (2) denying Bear
Valley's motion for summary judgment based on a release executed by Vine; (3) denying
summary judgment based on primary assumption of risk; (4) failing to instruct the jury on
primary assumption of risk, secondary assumption of risk, or "the obvious hazard
doctrine;" and (5) granting a new trial on noneconomic damages. Because the
instructional error requires reversal, we need not address the propriety of the new trial
ruling.

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DISCUSSION

1. The Workers' Compensation Bar

Bear Valley first raised the workers' compensation issue in a motion for summary
judgment. The court denied the motion, finding triable issues of fact as to whether Vine
was in the course and scope of her employment at the time of the injury, and whether she
was exempted from the worker's compensation scheme by Labor Code section 3352,
subdivision (f). Under that provision, "[a]ny person employed by a ski lift operator to
work at a snow ski area who is relieved of and not performing any prescribed duties,
while participating in recreational activities on his or her own initiative" is not an
"employee" for workers' compensation purposes.

The parties revisited the issue in a jointly filed pretrial motion, asking the trial
court to determine whether Vine's remedy was limited to workers' compensation based
on the following stipulated facts:

"[P]laintiff's injury was sustained in the course and scope of her employment.

"Plaintiff was defendant's employee.

"Plaintiff was injured during a corporate function.

"The corporate function was an employee party.

"Plaintiff's accident resulted from her engaging in a recreational activity
(snowboard jumping).

"The recreational activity was part of the party's entertainment.

"Plaintiff was providing working assistance at the party before she went
snowboarding.

"Defendant re-shaped portions of the jump on which plaintiff was injured
specifically for the party.

"The ski area was not open to the general public on the date plaintiff was injured.

"Eric Bottomley is the Vice President of Operations for Bear Valley Ski
Company.

"If Charlene Vine and Eric Bottomley were called to testify, they would testify as
per the attached."

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"Eric Bottomley, if called to testify, would also state that he had spoken with
Charlene Vine in advance of the employee party about needing her help during the
event."

The parties attached excerpts from the depositions of Bottomley and Vine.
Bottomley testified that employees were not required to attend the party. Vine had
agreed to help him as a volunteer with bartending and a raffle. After working for a while
she was "just hounding and hounding" Bottomley to let her go snowboarding, and he
finally agreed.
Vine testified it was the season-ending party for Bear Valley employees and their
families. The facility was closed to the general public. She had not planned on
snowboarding that day, but a contest had begun and "a couple of people had come up to
me and told me there w[ere] no girls entered and they wanted me to go snowboarding."
She changed into her ski clothes and took a couple of jumps off a small jump on the edge
of a sun deck. People were cheering and someone was announcing over a microphone.

Vine did not remember the circumstances under which she decided to go to a larger jump
on a nearby hill, where her injury occurred. "I just remember there was a bunch of
people headed toward the jump, and the next thing I remember is standing next to the
jump . . . ."

Vine contended she was exempted from the workers' compensation scheme by
Labor Code section 3352, subdivision (f) because she was employed by Bear Valley to
work at its ski area, and was snowboarding on her own initiative during a break from her
bartending duties when she was injured. Bear Valley noted the workers' compensation
statutes are liberally construed in favor of coverage. (Lab. Code, § 3202.) It argued that
once Vine stipulated she was in the course and scope of her employment, she could not
claim she was "not performing any prescribed duties" and "participating in recreational
activities on . . . her own initiative" within the meaning of Labor Code section 3352,
subdivision (f). Bear Valley emphasized that snowboarding was an anticipated feature of
the party, and Vine was encouraged to participate by her peers.

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In response, Vine observed Labor Code section 3352, subdivision (f) was enacted
in response to a Colorado Supreme Court decision holding that a ski resort bartender was
in the course of his employment when he was injured while skiing during his time off,
using his employee ski pass. (Dorsch v. Industrial Commission (Colo. 1974) 523 P.2d
458, 460; see Northstar at Tahoe v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th
1481, 1485.) Thus, it did not matter that she had stipulated she was in the course of her
employment; the Legislature acted to exempt ski resort employees from coverage during
off-hour recreational activity precisely because that activity might be considered part of
"the course of their employment."

The court agreed with Vine, and ruled that Labor Code section 3352, subdivision
(f) exempted her from workers' compensation coverage. Bear Valley challenges that
finding. It contends application of the statutory exemption to the stipulated facts is a
question of statutory interpretation subject to our independent review.

At oral argument, Bear Valley suggested that once a ski resort employee arrives at
an employer-sponsored party (assuming the party is within the course of the
employment), all injuries suffered during recreational activities provided by the employer
are covered by workers' compensation as a matter of law  that is, the activity cannot be
considered to have been undertaken on the employee's "own initiative" under Labor
Code section 3352, subdivision (f).

We disagree. Participation in the resort's recreational activities is a common
feature of employment at ski resorts. The mere fact that the activity occurs at an
employee-only party is not enough to take it out of the scope of the exemption provided
by the Legislature specifically for such recreational activity. Determining whether an
employee participated on her "own initiative" requires examination of the particular
circumstances, including the extent to which the employer sponsored, encouraged,
supervised, or otherwise participated in the activity.
Vine correctly argues that the trial court's finding on this issue is subject to the
substantial evidence standard of review. The application of Labor Code section 3352,
subdivision (f) to the stipulated facts is a mixed question of law and fact, which is

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predominantly factual and "requires application of experience with human affairs;"
therefore, it is governed by the substantial evidence test. (Crocker National Bank v. City
and County of San Francisco (1989) 49 Cal.3d 881, 888.) When conflicting inferences
may be drawn from stipulated facts, we must accept the trial court's resolution of the
conflict if it is supported by reasonable inference. (Winograd v. American Broadcasting
Co. (1998) 68 Cal.App.4th 624, 632-634; Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2003) 8:60, p. 18-23.)

Here, while Bear Valley re-shaped the jump for use by its employees at the party,
there was no evidence it overtly encouraged Vine to participate, or that its representatives
took an active role in employees' use of the jump. There was strong evidence that Vine
herself persistently lobbied Bottomley to be released from her duties at the party to go
snowboarding. Reasonable inferences from the stipulated facts support the trial court's
determination that she went snowboarding on her own initiative, and thus came within
the exemption provided by Labor Code section 3352, subdivision (f).

2. Labor Code Section 2801

Before we address Bear Valley's assumption of risk arguments, we consider
Vine's claim that Labor Code section 2801 precluded Bear Valley from raising
assumption of risk as a defense. This argument was presented to the trial court in the
parties' joint pretrial motion, along with the worker's compensation issue discussed
above. The court rejected the claim, and properly so. Our review of this question of
statutory interpretation is de novo. (Department of Rehabilitation v. Workers' Comp.
Appeals Bd. (2003) 30 Cal.4th 1281, 1290.)

The relevant provisions of Labor Code section 2801 state: "In any action to
recover damages for a personal injury sustained within this State by an employee while
engaged in the line of his duty or the course of his employment as such . . . in which
recovery is sought upon the ground of want of ordinary or reasonable care of the
employer . . . . [] It shall not be a defense that: [] (a) The employee either expressly or
impliedly assumed the risk of the hazard complained of." Section 2801 appears in
Division 3 of the Labor Code, and applies only if an employee is not covered by the

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workers' compensation scheme. (Lab. Code, § 2700; Devens v. Goldberg (1948) 33
Cal.2d 173, 176-177.)

Vine contends it is consistent to hold that she was both "in the course of [her]
employment" at the time of her injury for purposes of Labor Code section 2801, and "not
performing any prescribed duties, while participating in recreational activities on . . . her
own initiative" for purposes of the exemption from workers' compensation coverage
provided by Labor Code section 3352, subdivision (f). She notes Labor Code section
3352, subdivision (f) is predicated on the notion that exempted employees are "in the
course of employment" for workers' compensation purposes (otherwise, there would be
no need for an exemption). She also argues that while the exemption excluded her from
the definition of "employee" in the workers' compensation scheme, the Supreme Court
has stated that the benefits of Labor Code section 2801 may be extended to a plaintiff
who is not an "employee" for workers' compensation purposes. (Edwards v. Hollywood
Canteen (1946) 27 Cal.2d 802, 811.)

We are not persuaded. Just as "employee" status may operate differently under
Labor Code section 2801 and the workers' compensation scheme, so may the "course of
employment" determination. Labor Code section 2801 refers to "the course of []
employment as such" (italics added), suggesting the Legislature contemplated a more
restrictive application of "course of employment" than it has prescribed in the workers'
compensation statutes, which include off-duty recreational activities if they are a
reasonable expectancy of the employment. (Lab. Code, § 3600, subd. (a)(9); see Kidwell
v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 1130, 1136.) Employees
voluntarily taking advantage of such recreational benefits are not the intended
beneficiaries of Labor Code section 2801, which is based on the rationale that " ‘. . . the
employee is in a weak economic position, that he is unable to risk refusal to work in an
unsafe place or with an unsafe appliance, hence should not be held to the penalty imposed
on one who acquiesces in a danger.' [Citation.] . . . [T]he workman has no alternative
but the loss of his livelihood; it is his poverty and not his will which consents, and

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economically he is no more free to leave his employment than a soldier or a sailor."

(Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 368.)

Furthermore, Vine's interpretation of the statute would lead to absurd results. Ski
resorts would be barred from raising assumption of risk defenses, express or implied, in
actions by employees injured while skiing on their own time side by side with members
of the public who have signed releases expressly assuming the risk of the hazards
associated with the sport, or who would otherwise be subject to the implied assumption
of risk defenses. Vine, of course, happened to be injured at an employee-only party, but
her reading of Labor Code section 2801 would apply equally to the more typical situation
in which an off-duty employee is injured while skiing during the regular season. (See,
e.g., Northstar at Tahoe v. Workers' Comp. Appeals Bd., supra, 42 Cal.App.4th at p.
1484.)

Nothing suggests the Legislature meant to treat ski resort employees enjoying the
recreational opportunities afforded by their employment differently from the general
public, which pays for the privilege of using a resort's facilities and assumes the wellknown
risks of doing so.1 "It is the duty of the courts, whenever possible, to interpret
statutes so as to make them workable and reasonable, and to avoid absurd applications."

(Northstar at Tahoe v. Workers' Comp. Appeals Bd., supra, 42 Cal.App.4th at p. 1485.)
It would be unreasonable to bar the assumption of risk defenses in cases brought by ski
resort employees injured during off-duty recreation, while permitting the resort to raise
those defenses in actions by its customers. Such a rule might well lead to the loss of the
ski pass as a form of compensation for resort employees. We hold that ski resort
employees who are exempt from workers' compensation coverage under Labor Code
section 3352, subdivision (f) are not also exempt from assumption of risk under Labor
Code section 2801.

1 In this case, it appears the release signed by Vine was on the same form signed by Bear
Valley's paying customers. It begins, "In consideration for the purchase of a Bear Valley
Mountain Resort season pass . . . ."

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3. The Release

Bear Valley also moved for summary judgment based on a release signed by Vine
when she received her employee season pass. The operative terms of the release were as
follows:

"I understand and am aware that skiing is a HAZARDOUS ACTIVITY involving
INHERENT AND OTHER RISKS of injury to any and all parts of my body. I further
understand that injuries in the sport are a COMMON AND ORDINARY
OCCURRENCE, and I freely ACCEPT AND ASSUME ALL RISKS OF INJURY OR
DEATH that might be associated with my participation in this sport.

". . . To the fullest extent allowed by law, I agree to RELEASE FROM
LIABILITY, and to INDEMNIFY AND HOLD HARMLESS Bear Valley Mountain
Resort . . . from any and all liability on account of, or in any way resulting from, personal
injuries, death or property damage, even if caused by NEGLIGENCE, in any way
connected with my participation in this sport. I further AGREE NOT TO MAKE A
CLAIM OR SUE FOR INJURIES OR DAMAGES in any way connected with my
participation in this sport, even if caused by NEGLIGENCE."

The court denied Bear Valley's summary judgment motion, finding the terms of
the release ambiguous in that "skiing" does not necessarily include snowboarding. The
court also ruled that a reference in the pass to the 1999-2000 "season" did not
unambiguously apply to Vine's injuries, evidently on the theory that the employee party
did not occur during the "season" because it took place after the slopes had been closed to
the public until the next season.

Bear Valley notes the court also excluded any reference to the release during trial.

It does not challenge the propriety of that ruling, however, claiming only that the court
erred by failing to grant summary judgment. Vine protests that Bear Valley is improperly
seeking a more favorable standard of review by limiting its appellate claims in this
fashion. (See Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360-361
[contrasting deferential review of trial court's assessment of extrinsic evidence to resolve
ambiguity in release with independent review of summary judgment ruling].) Vine's

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point is well taken. Review of a ruling denying summary judgment is inappropriate when
"the same questions raised by the motion are then decided adversely to the unsuccessful
moving party after a trial on the merits which is itself free from prejudicial error."
(Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836; see also Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs, supra, 2:242.2, p. 2-107.) Here, while we
conclude the trial court did err in another regard, Bear Valley may not pass over the
court's ruling on the release at trial in order to get another bite at the summary judgment
apple.

In any event, the court's denial of summary judgment was plainly correct. The
release was ambiguous, at least as to whether the term "skiing" included snowboarding.

Bear Valley presented no extrinsic evidence to resolve the ambiguity. It merely noted
Vine's deposition testimony that she understood she had executed a release in exchange
for her season pass. This evidence shed no light on the meaning of the terms in the
release. Bear Valley argued below, as it does in this court, that "skiing" includes
snowboarding as a matter of law under Campbell v. Derylo (1999) 75 Cal.App.4th 823.

The Campbell court concluded a jury might find that a snowboarder's conduct violated a
county ordinance providing safety regulations for skiers. (Id. at p. 829.) However, the
pertinent question in this case is how a reasonable person in Vine's position would have
believed Bear Valley understood the scope of the release. (Solis v. Kirkwood Resort Co.,
supra, 94 Cal.App.4th at p. 361.) Campbell does not answer that question.2

2 Should the issue arise again in litigation following remand, we note for the benefit of the
parties and the trial court that an easy answer is not necessarily provided by the general rule that
ambiguities in a contract are construed against the party who drafted the terms. That maxim
applies only when other canons of construction, including consideration of extrinsic evidence of
the parties' intent, fail to resolve the ambiguity. (Oceanside 84, Ltd. v. Fidelity Federal Bank
(1997) 56 Cal.App.4th 1441, 1448; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 798.)

We note also that if the express assumption of risk in the release is applicable, the
implied assumption of risk principles discussed in Knight would not come into play. (Allan v.
Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1374-1375; Allabach v. Santa Clara County
Fair Assn. (1996) 46 Cal.App.4th 1007, 1012-1013.)

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4. Primary Assumption of Risk

A third ground on which Bear Valley sought summary judgment was primary
assumption of risk. Bear Valley contended it owed no duty to protect Vine against risks
of injury inherent in the sport of snowboard jumping. Vine responded that she did not
assume the risk of a defective jump. She presented a declaration from an accident
reconstruction expert opining that the jump's design was defective and subjected those
using it to an extreme risk of serious injury. The court decided the primary assumption of
risk doctrine did not apply, because "the sport of snowboarding does not inherently
require jumps which are designed in such a way as to create an extreme risk of injury.

(Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184.)"

Bear Valley contends the court erred by denying summary judgment. It also
claims the court improperly denied a proposed jury instruction on primary assumption of
risk. Vine asserts the summary judgment ruling is not appealable. She argues the court
properly refused to instruct the jury on primary assumption of risk, because the defense
presents only legal issues for the court to determine.

Again, we deem it inappropriate to review the summary judgment ruling. There
are circumstances in which a denial of summary judgment is reviewable after a trial on
the merits. (Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 836.) However, in this case
a great deal more evidence was presented at trial than in the summary judgment
proceedings on the critical question of whether the jump on which Vine was injured was
defectively constructed. The interests of justice would not be served if we ignored the
fully developed record and conducted an independent review of the summary judgment
papers. (Id. at pp. 835-836.)

In any event, as with the question of the release (see Part 3, ante), the court's
denial of summary judgment on primary assumption of risk was clearly correct.

As the
moving defendant, Bear Valley had the burden of showing that one or more elements of
Vine's cause of action could not be established. (Code Civ. Proc., § 437c, subd. (o)(2);
Merrill v. Navegar (2001) 26 Cal.4th 465, 476-477.) Primary assumption of risk operates
to foreclose any duty owed by the defendant to the plaintiff, and thus is a defense that is

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generally "amenable to resolution by summary judgment." (Knight, supra, 3 Cal.4th at p.

313; Kahn, supra, 31 Cal.4th at p. 1004.)

However, "[a]lthough defendants generally have no legal duty to eliminate (or
protect a plaintiff against) risks inherent in [a] sport itself, it is well established that
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, supra, 3 Cal.4th at p.
315-316; Kahn, supra, 31 Cal.4th at p. 1004.) Vine's complaint was premised on the
allegation that Bear Valley's jump "constituted a dangerous and defective condition,
likely to cause persons using the jump to injure themselves, and increasing the risks to
snowboarders such as plaintiff over and above those inherent in the sport."

Therefore, in order to establish it owed no duty to Vine because she had assumed
the risk of injury, Bear Valley had to show either that its jump did not increase the
inherent risks of snowboard jumping, or that whatever defects the jump may have had
were included in those risks. It attempted neither showing in its moving papers,
contending merely that falling is an inherent risk of the sport. This was not sufficient to
require Vine to undertake the burden of raising a triable issue of fact as to whether the
jump posed risks beyond those inherent in snowboard jumping. (Code Civ. Proc., §
437c, subd. (o)(2); see Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at pp. 364-
366 [while falling is inherent risk of skiing, whether artificial jumps built by resort
increased inherent risk and created duty to warn was question for jury].)3
3 Bear Valley refers us to Estate of Harshman v. Jackson Hole Mountain Resort (D. Wyo.
2002) 200 F.Supp.2d 1329, 1342-1346, in which the court determined that the risk of a fatal
crash landing by an experienced snowboarder taking a jump in a "terrain park" that had been
modified the night before was an inherent risk of snowboard jumping. We note that a similar
result was reached in Shukoski v. Indianhead Mountain Resort, Inc. (6th Cir. 1999) 166 F.3d
848, 852-853, holding that a snowboarder who was rendered quadriplegic after falling on a jump
in a "terrain garden," clearly marked as an expert slope, assumed the risk of his injuries. Neither
of these opinions, however, considered whether the defendants' elevation of inherent risks took
the case out of the scope of the assumption of risk doctrine as it has developed in California.

Both emphasized that the plaintiffs were injured in specially designated parks with warning
signs. (Harshman, supra, 200 F.Supp.2d at p. 1344-1345; Shukoski, supra, 166 F.3d at p. 852.)
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We discuss Bear Valley's proposed jury instruction on primary assumption of risk
below, in connection with secondary assumption of risk. Primary assumption of risk per
se is not a proper subject for jury instruction. Our Supreme Court has made it clear that
whether primary assumption of risk negates a defendant's duty to protect the plaintiff
from a particular risk is a legal determination to be made by the court, not the jury.
(Knight, supra, 3 Cal.4th 296, 313; Kahn, supra, 31 Cal.4th 990, 1003-1004.)

Thus, Bear
Valley might properly have raised the issue at trial by way of a motion for directed
verdict (which would have resulted in a ruling we could properly review).

Nevertheless,
in certain circumstances primary and secondary assumption of risk are intertwined and
instruction is required so the jury can properly determine whether the defendant did, in
fact, increase the risks inherent in a hazardous sport so that secondary assumption of risk
should be considered.

5. Secondary Assumption of Risk

In Kahn, our Supreme Court summarized Knight's reconciliation of the doctrines
of assumption of risk and comparative fault as follows: "We observed that the term
‘assumption of risk' had been used in connection with two classes of cases: those in
which the issue to be resolved was whether the defendant actually owed the plaintiff a
duty of care (primary assumption of risk), and those in which the defendant had breached
a duty of care but where the issue was whether the plaintiff had chosen to face the risk of
harm presented by the defendant's breach of duty (secondary assumption of risk).
([Knight, supra, 3 Cal.4th] at pp. 303-304, 308.) In the latter class of cases, we
concluded, the issue could be resolved by applying the doctrine of comparative fault, and
the plaintiff's decision to face the risk would not operate as a complete bar to recovery.

In such a case, the plaintiff's knowing and voluntary acceptance of the risk functions as a
form of contributory negligence. (Id. at pp. 308, 310-311.)" (Kahn, supra, 31 Cal.4th at
p. 1003.)

Cases like this one, where the plaintiff contends the defendant breached the duty
not to increase the risks inherent in a hazardous sporting activity, present both aspects of
the assumption of risk doctrine. If the plaintiff fails to show any increase in the inherent

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risks, or if the trial court determines that the only risks encountered were inherent in the
sport, the defendant prevails based on primary assumption of risk. If the jury, properly
instructed on the scope of the defendant's duty, determines the defendant did increase the
inherent risk, it then considers the plaintiff's claim based on secondary assumption of risk
as an aspect of the plaintiff's comparative fault. (American Golf Corp. v. Superior Court,
supra, 79 Cal.App.4th 30, 36-37; Branco v. Kearny Moto Park, Inc., supra, 37
Cal.App.4th at p. 193.) "This second determination of duty, however, still hinges upon
the trial court's determination of the question of duty in the first instance, by defining the
risks inherent in the sport at issue." (Staten v. Superior Court (1996) 45 Cal.App.4th
1628, 1633.)4

The duty aspect of the secondary assumption of risk doctrine was actually
addressed by Bear Valley's proposed jury instruction on primary assumption of risk.5

4 Whether the defendant has increased the risks inherent in a sport is a question reserved
for the court insofar as it involves the legal determination of the scope of the defendant's duty.

The court may consider expert opinion regarding the risks customarily considered "inherent,"
though expert opinion is not controlling on the ultimate legal question of duty. (Kahn, supra, 31
Cal.4th at p. 1017; see, e.g., Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204,
213-214 [ski patrol instructor's assessment of terrain and of students' ability presented inherent
risk, despite criticism from numerous experts].) However, once the court has resolved the issue
of what the inherent risks are, whether the defendant in fact increased those risks under the
circumstances of a particular case may be a question for the jury. (Kahn, supra, 31 Cal.4th at p.
1018; see, e.g., Campbell v. Derylo, supra, 75 Cal.App.4th at pp. 829-830 [whether snowboarder
increased risks to skier by failing to use retention strap on his snowboard was jury question]; Van
Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317-1318 [whether sign post on ski run
increased risk to skier was question of fact reserved for trial].)

5 This proposed instruction stated: "The defendant has no duty to eliminate, reduce or
make safer the inherent risks of injury which arise from the nature of the sport of recreational
snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one
that cannot be eliminated without fundamentally changing the nature of the sport or chilling
vigorous participation in the sport.

"The defendant is under a duty to use ordinary care not to increase the risks to a
snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain
from constructing a jump for use by the public which, by design, poses an extreme risk of injury.

"A failure to fulfill such duty is negligence."
Bear Valley also submitted an alternative version of this instruction, including this
statement: "A finding that defendant's conduct may have increased the severity of the injury
suffered is not a finding that defendant increased the risk of injury beyond that inherent in

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The secondary assumption of risk instruction offered by Bear Valley addressed the risk of
injury Vine assumed when she attempted the jump.6 We agree with Bear Valley that the
court erred by rejecting these instructions, which explained principles crucial to the jury's
deliberations. "A party is entitled upon request to correct, nonargumentative instructions
on every theory of the case advanced by him which is supported by substantial evidence.

The trial court may not force the litigant to rely on abstract generalities, but must instruct
on specific terms that relate the party's theory to the particular case. [Citations.]" (Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 572.)
Vine claims the court's instruction on contributory negligence with BAJI No. 3.50
sufficiently informed the jury regarding secondary assumption of risk.7 She argues that
because the doctrine "is merged into the comparative fault scheme" (Knight, supra, 3
Cal.4th at p. 315), it would be duplicative and potentially confusing to instruct the jury on
both concepts. A review of the discussion in Knight demonstrates the inadequacy of this
general comparative negligence instruction in the secondary assumption of risk context.

A central part of Knight's reasoning was that a plaintiff's voluntary assumption of the
risks of a dangerous sport "functions as a form of contributory negligence," as the Kahn
recreational snowboard jumping." The parties raise no issue concerning the propriety of the
additional statement.

6 This proposed instruction stated: "If you find that defendant breached its duty of care to
plaintiff, plaintiff's knowing encounter with a risk of injury caused by defendant's breach, if any,
is to be considered by you in determining the plaintiff's comparative negligence or fault. A
person who is aware of a risk of harm created by a defendant's breach of duty but fails to avert
the harm is comparatively negligent for the injury.

"You should consider all of the surrounding circumstances established by the evidence,
including, but not limited to, the plaintiff's maturity, intelligence, experience and capacity, along
with all the other surrounding circumstances as shown by the evidence."

Again, Bear Valley submitted an alternative instruction with additional material, none of
which is material to the issues before us.

7 This instruction informed the jury: "Contributory negligence is negligence on the part of
a plaintiff which, combining with the negligence of a defendant, contributes as a cause in
bringing about the injury.

"Contributory negligence, if any, on the part of the plaintiff does not bar a recovery by
the plaintiff against the defendant but the total amount of damages to which the plaintiff would

16

court put it, even if the plaintiff's decision to participate was not "unreasonable" and thus
not, strictly speaking, a negligent act. (Kahn, supra, 31 Cal.4th at p. 1003; Knight, supra,

3 Cal.4th at p. 314.) Knight addressed this point in response to the concern of an amicus
curiae that a defendant whose breach of duty played only a minor role in the plaintiff's
injury might nevertheless face a damage award undiminished by the plaintiff's
comparative fault, if the jury decided the plaintiff's choice to engage in a dangerous
activity was voluntary but also reasonable:

"Although we agree with the general thesis of amicus curiae's argument that
persons generally should bear personal responsibility for their own actions, the
suggestion that a duty approach to the doctrine of assumption of risk is inconsistent with
this thesis rests on a mistaken premise. Past California cases have made it clear that the
‘comparative fault' doctrine is a flexible, commonsense concept, under which a jury
properly may consider and evaluate the relative responsibility of various parties for an
injury (whether their responsibility for the injury rests on negligence, strict liability, or
other theories of responsibility), in order to arrive at an ‘equitable apportionment or
allocation of loss.' [Citations.]

"Accordingly, contrary to amicus curiae's assumption, we believe that under
California's comparative fault doctrine, a jury in a ‘secondary assumption of risk' case
would be entitled to take into consideration a plaintiff's voluntary action in choosing to
engage in an unusually risky sport, whether or not the plaintiff's decision to encounter
the risk should be characterized as unreasonable, in determining whether the plaintiff
properly should bear some share of responsibility for the injuries he or she suffered.

[Citations.] Thus, in a case in which an injury has been caused by both a defendant's
breach of a legal duty to the plaintiff and the plaintiff's voluntary decision to engage in an
unusually risky sport, application of comparative fault principles will not operate to
relieve either individual of responsibility for his or her actions, but rather will ensure that
neither party will escape such responsibility." (Knight, supra, 3 Cal.4th at pp. 313-314,
otherwise be entitled must be reduced in proportion to the amount of negligence attributable to
the plaintiff."

17

italics added; and see Kahn, supra, 31 Cal.4th at p. 1005, fn. 2 [analysis of Knight
plurality has been adopted by Supreme Court].)

Therefore, it was not sufficient for the jury to be instructed that Vine's recovery
should be diminished in proportion to her "negligence." The court gave the standard
negligence instructions from BAJI, quoted in full below,8 which characterized negligence
as "something which a reasonably prudent person would not do," and "the failure to use
ordinary or reasonable care . . . under circumstances similar to those shown by the
evidence." The circumstances shown by the evidence were that many Bear Valley
employees took the jump at the party. The jury saw a videotape of about 30 of Vine's
fellow employees safely completing the jump. There was no suggestion that all these
people acted negligently when they voluntarily chose to face the risks posed by the jump.

As we explain below in our analysis of the prejudice caused by the court's instructional
error, it was the manner in which Vine attempted the jump that the jury was likely to
consider negligent, not her willingness to take the risk.

The instructions were equally erroneous regarding the duty of care owed by Bear
Valley. The court directed the jury to evaluate Bear Valley's conduct by the standard of

8 "Negligence is the doing of something which a reasonably prudent person would not do,
or the failure to do something which a reasonably prudent person would do under circumstances
similar to those shown by the evidence.

"It is the failure to use ordinary or reasonable care.

"Ordinary or reasonable care is that care which persons of ordinary prudence would use
in order to avoid injury to themselves or others under circumstances similar to those shown by
the evidence." (BAJI No. 3.10.)

"One test that is helpful in determining whether a person was negligent is to ask and
answer the question whether or not, if a person of ordinary prudence had been in the same
situation and possessed of the same knowledge, he would have foreseen or anticipated that
someone might have been injured by or as a result of his action or inaction. If the answer to that
question is ‘yes,' and if the action or inaction reasonably could have been avoided, then not to
avoid it would be negligence." (BAJI No. 3.11.)

"The amount of caution required of a person in the exercise of ordinary care depends
upon the conditions that are apparent or that should be apparent to a reasonably prudent person
under circumstances similar to those shown by the evidence." (BAJI No. 3.12.)

"Evidence as to whether a person conformed or did not conform to a custom that had
grown up in a given locality or business is relevant and ought to be considered, but is not
necessarily controlling on the issue whether that person was negligent. That issue must be
determined by the standard of care that I have stated to you." (BAJI No. 3.16.)

18

"ordinary or reasonable care," under which a party has acted negligently if a "person of
ordinary prudence . . . would have foreseen or anticipated that someone might have been
injured" as a result of the party's "action or inaction." (BAJI Nos. 3.10 and 3.11; see fn.
8, ante.) The jury was told to apply this ordinary standard of care even if Bear Valley's
conduct conformed to the standards customary in the ski resort industry. (BAJI No. 3.16;
see fn. 8, ante.) Nowhere was the jury informed that Bear Valley owed Vine no duty to
protect her from the risks inherent in snowboard jumping. Indeed, the instructions
suggested just the opposite, since it was obviously foreseeable that the inherent risks of
riding a snowboard over the jump built by Bear Valley might result in injury.

The ski resort setting is such an obvious example of assumed risk that Knight used
it as an example in discussing the scope of a property owner's duty:

"[A] property owner ordinarily is required to use due care to eliminate dangerous
conditions on his or her property. [Citation.] In the sports setting, however, conditions
or conduct that otherwise might be viewed as dangerous often are an integral part of the
sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might
not exist were these configurations removed, the challenge and risks posed by the moguls
are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.]

In this respect, the nature of a sport is highly relevant in defining the duty of care owed
by the particular defendant.

"Although defendants generally have no legal duty to eliminate (or protect a
plaintiff against) risks inherent in the sport itself, it is well established that 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. Thus, although a ski resort has no duty to remove
moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes
in a safe, working condition so as not to expose skiers to an increased risk of harm. The
cases establish that the latter type of risk, posed by a ski resort's negligence, clearly is not

19

a risk (inherent in the sport) that is assumed by a participant. [Citation.]" (Knight, supra,

3 Cal.4th at pp. 315-316.)9

The duty to safely maintain towropes is not an apt comparison to Bear Valley's
role in shaping the mound of snow that Vine and others jumped over at the employee
party. The jump, unlike towropes, was an essential component of the sporting activity
itself. Knight pointed out that "the nature of a defendant's duty in the sports context
depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty
owed by a defendant frequently will also depend on the defendant's role in, or
relationship to, the sport." (Knight, supra, 3 Cal.4th at p. 317.) Knight proceeded to
approve cases analyzing "the duty of the owner of a ballpark or ski resort, in the process
defining the risks inherent in the sport not only by virtue of the nature of the sport itself,
but also by reference to the steps the sponsoring business entity reasonably should be
obligated to take in order to minimize the risks without altering the nature of the sport."

(Ibid., italics added.)

This passage in Knight provides the appropriate standard of care by which Bear
Valley's liability should have been determined.10 The jury should have considered not
whether an ordinarily prudent person in Bear Valley's position would have anticipated
that someone might be injured on the jump, but what steps Bear Valley should reasonably
have taken to minimize the risks without altering the nature of the sport of snowboard

9 Numerous cases arising from ski resort injuries have considered various aspects of the
assumption of risk doctrine. For post-Knight examples beyond those cited in this opinion, see 6
Witkin, Summary of Cal. Law (9th ed., 2003 supp.) Torts, § 1090C, pp. 339-343; see also
Annotation, Ski Resort's Liability for Skier's Injuries Resulting From Condition of Ski Run or
Slope, 55 A.L.R.4th 632, section 4.

10 The duties of proprietors of sporting venues are distinct from those of co-participants or
instructors, who are not held to have increased the inherent risks of a sport unless they
intentionally injure another or engage in reckless conduct outside the range of the sport's
ordinary activities. (Knight, supra, 3 Cal.4th at p. 318 [co-participants]; see, e.g., Mastro v.
Petrick (2001) 93 Cal.App.4th 83, 91 [snowboarder colliding with skier held to "reckless"
standard]; Kahn, supra, 31 Cal.4th at p. 1011 [instructors]; see Kane v. National Ski Patrol
System, Inc., supra, 88 Cal.App.4th at p. 213-214 [ski patrol instructor held to "reckless"
standard]. See generally Morgan v. Fuji Country U.S.A., Inc. (1995) 34 Cal.App.4th 127, 133-
134.)

20

jumping. This standard has been approved in a similar case involving injuries sustained
by a bicyclist who fell while riding over a man-made jump in a "moto park." (Branco v.
Kearny Moto Park, Inc., supra, 37 Cal.App.4th at pp. 187, 192-193; see also Morgan v.
Fuji Country U.S.A., Inc., supra, 34 Cal.App.4th at p. 134 [golf course operator owed
duty to minimize risks of being struck by balls without altering nature of sport].) Bear
Valley's proposed primary assumption of risk instruction properly explained its
obligation not to increase the inherent risks of snowboard jumping, while preserving the
participants' opportunity to vigorously engage in the sport. (See fn. 5, ante.)

The court
erred by failing to give the assumption of risk instructions offered by Bear Valley.11

The dissent acknowledges it would have been "advisable" to give the primary
assumption of risk instruction proposed by Bear Valley, but contends the error is
harmless in light of the evidence and the arguments of counsel. As to Bear Valley's
proposed instruction on secondary assumption of risk, however, the dissent argues the
evidence did not support the instruction because there was no showing Vine was aware of
the increased risk posed by the negligent formation of the jump. We agree there was no
such showing, but none was required.

A "knowing encounter with a risk of injury caused by defendant's breach," as
posited in Bear Valley's proposed instruction based on the language of Knight, does not
entail knowledge of the breach and its causative effects, either in law or in logic. If Vine
had encountered this jump while snowboarding by herself, decided to try it, and only later
learned it was shaped by Bear Valley in a particularly dangerous way, Bear Valley would
still have been entitled to raise an assumption of risk defense in a negligence action by
Vine. It is the risk that must be appreciated by a plaintiff for the assumption of risk
doctrine to come into play, not the defendant's breach of duty.

11 Bear Valley also challenges the court's failure to give a proposed instruction on what
Bear Valley terms the "obvious hazard doctrine." The court properly rejected this instruction,
which told the jury Bear Valley had no duty to warn Vine of an obvious hazard. While Vine did
include a duty to warn allegation in her complaint, she did not argue that theory of liability to the
jury. Furthermore, after Rowland v. Christian (1968) 69 Cal.2d 108, landowners have not been
excused from liability flowing from obvious hazards if injury was foreseeable. (See 6 Witkin,
Summary of Cal. Law, Torts, supra, § 931, p. 302, and 2003 supp., pp. 218-220.)

21

The dissent acknowledges Vine need not have been aware of Bear Valley's
breach, but argues the proposed instruction depended on a showing that she knew the
jump posed "more than the normal" risks. The dissent correctly notes that Knight refers
to the plaintiff's knowledge of risks "created" or "imposed" by the defendant's breach.

(Knight, supra, 3 Cal.4th at pp. 310-311, 315.) However, as we read Knight the
plaintiff's encounter with the risk must be "knowing" only in the general sense that the
plaintiff understood the nature of the risk involved. Thus, Vine understood and assumed
the risk of injuring herself in a fall on the snow, but she did not assume the risk of landing
on a spike concealed in the jump.12 Some elevation of the inherent danger of falling
must have been "created" by Bear Valley's negligence for Vine to have an actionable
claim; however, she did not have to subjectively appreciate the elevated increment of the
risk to assume the inherent risks of snowboard jumping.
We recognize that Knight includes in its secondary assumption of risk discussion
"see" citations to authorities approving consideration of plaintiffs' subjective awareness
of risk. (Knight, supra, 3 Cal.4th at p. 314, citing Kirk v. Washington State University
(1987) 109 Wn.2d 448 [746 P.2d 285, 290-291]; Schwartz, Comparative Negligence,
[(1st ed. 1974)], § 9.5, p. 180; and Diamond, Assumption of Risk After Comparative
Negligence: Integrating Contract Theory into Tort Doctrine (1991) 52 Ohio St. L.J. 717,
748-749.) However, in cases where secondary assumption of risk arises from defendants'
breach of the duty not to increase a sport's inherent risk, requiring plaintiffs to be
specifically aware of the increase would be inconsistent with Knight's analysis. Plaintiffs
could avoid the assumption of risk defense by claiming they were ignorant of the effects
of defendants' negligence, "however minor," and "voluntary risk takers" would "avoid
all responsibility for their own actions." (Knight, supra, 3 Cal.4th at p. 313.) Indeed, a
plaintiff would be most likely not to notice the results of the defendant's negligence when

12 The fact that Bear Valley was the provider of a venue for sporting activities distinguishes
this case from Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 116, in which the court held that
residential property owners owed no duty to protect a skateboarder from the risk of falling on a
pipe located in a planter box.

22

the increase in the inherent risk was only slight, and the defense would be unavailable
where it was most appropriate.

Here, for instance, had the jury decided that Bear Valley increased the inherent
risks of the jump by 5 percent, no fault would be allocated to Vine for her assumption of
risk unless Bear Valley could prove she perceived the enhanced fraction of the risk (or
part of it, at least, according to the dissent). We do not believe this is what Knight
intended; in such a case, assumption of risk is an available defense if the plaintiff
participated in the sport with knowledge of its inherent risks. Obviously, if a plaintiff is
aware of an increased risk created by the defendant, that awareness can be included in the
jury's evaluation of comparative fault. But Knight does not predicate secondary
assumption of the risk on such specific subjective considerations.

Knight contemplated a "flexible, commonsense" consideration of comparative
fault by the jury, in which "both a defendant's breach of a legal duty to the plaintiff and
the plaintiff's voluntary decision to engage in an unusually risky sport" are weighed by
the jury to reach an equitable apportionment of fault. (Knight, supra, 3 Cal.4th at p. 314.)

Whether (and by how much) it is fair to reduce a plaintiff's recovery for injuries caused
by the defendant's negligent elevation of the risk, even if the plaintiff was unaware of the
increase in the risk, is a question for the trier of fact to decide in light of the particular
circumstances of each case. Here, the instructions failed to present this critical question
to the jury. Bear Valley's proposed instruction asking the jury to consider Vine's
"knowing encounter with a risk of injury caused by defendant's breach" adequately
framed the question, and should have been given.13

13 The dissent accuses Bear Valley of faulting the court for not giving an instruction Bear
Valley never proposed. It is true Bear Valley's proposed instructions did not include a salient
qualification  that comparative fault may be assigned for engaging in a risky sport even if the
plaintiff did not act unreasonably. While Bear Valley relies on this point for the first time in its
appellate brief, it also squarely challenges the court's failure to give its proposed instructions.

Those instructions correctly reflected principles established in Knight, and adopted Knight's
terminology. While the proposed instructions could have been better tailored to fit the
circumstances of this case (we offer an example below), it cannot seriously be disputed that Bear
Valley properly preserved its claim of instructional error.

23

It is probable the instructional error prejudicially affected the verdict.

The
"natural and probable effect of the error" on Bear Valley's "ability to place [its] full case
before the jury" was substantial  Bear Valley was effectively deprived of the
opportunity to present an assumption of risk defense to the jury. (Soule v. General
Motors Corp., supra, 8 Cal.4th 548, 580.) It was not able to ask the jury to factor Vine's
decision to accept the jump's risks into the determination of comparative fault, and the
jury was given a grossly inaccurate yardstick for measuring the scope of Bear Valley's
duty to the employees using the jump. Our Supreme Court has directed us to look at four
further factors in evaluating the prejudicial effect of instructional error: (1) the state of
the evidence; (2) the effect of other instructions; (3) the effect of counsel's arguments;
and (4) any indications by the jury itself that it was misled. (Id. at pp. 580-581.) Only
the first three factors apply in this case.

The evidence certainly supported a finding that Vine assumed a substantial risk.

There was no dispute at trial that snowboarding is a very risky sport. Whether the design
of the jump magnified the risks was a disputed issue. Bear Valley's expert on "terrain
parks," who viewed photographs of the jump at issue and the videotape of employees
using the jump on the day Vine was injured, testified that the jump was typical of those
used around the world, and could not have been designed to exclude the possibility that a
jumper would lose body control. Nevertheless, Bear Valley was held to a standard of
ordinary care, and the jury was not told to weigh Vine's acceptance of the risks of
snowboard jumping when assessing her share of the fault for her injuries. The other

A fuller explanation of the assumption of risk doctrine as it applied in this case might
read as follows:

"The defendant had no duty to protect the plaintiff from the risks of injury inherent in the
sport of recreational snowboard jumping. An inherent risk is one that cannot be eliminated
without fundamentally changing the nature of the sport or chilling vigorous participation in the
sport.

"The defendant did have a duty not to increase the risks of snowboard jumping beyond
the level of risk inherent in the sport. If the defendant breached that duty, it was negligent.

However, in determining the parties' comparative fault, you should consider the plaintiff's
voluntary decision to encounter the risks of snowboard jumping. Whether the plaintiff acted
reasonably or not in choosing to take those risks, you may reduce her recovery to account for her
assumption of risk by whatever amount you find proper in light of all the evidence."

24

instructions, as discussed above, did nothing to cure these problems.

Instead, they greatly
overstated Bear Valley's duty and omitted any mention of Vine's assumption of risk.
We agree with the dissent that the prejudice to Bear Valley on the issue of its duty
was mitigated by the way the case was presented. Vine's counsel did not suggest Bear
Valley could be held liable merely because an injury to snowboard jumpers was
foreseeable, although the instructions would have permitted such a finding. The evidence
and argument was properly aimed at whether the jump was negligently constructed so as
to pose risks beyond those normally encountered by snowboarders.
On the other hand, the jury was not informed that Bear Valley had no duty to take
steps to reduce the risks inherent in snowboard jumping, or to change the essential nature
of the sport. Bear Valley was thus deprived of a powerful avenue of argument.

However, we need not decide whether this error alone was prejudicial. Considering it
together with the court's failure to instruct the jury that Vine's recovery could be
diminished by her assumption of risk, we believe it is reasonably probable the jury was
actually misled in its apportionment of fault. (Soule v. General Motors Corp., supra, 8
Cal.4th at p. 581, fn. 11.)
Vine, and the dissent, contend the jury's allocation of 54.4 percent of the fault to
Vine demonstrated that the jury held her accountable for her decision to participate in a
risky sport. A close examination of the closing arguments, and the evidence on which
they were based, convinces us otherwise. Vine's counsel proposed and disputed a
number of grounds on which the jury might be tempted to consider Vine contributorily
negligent: (1) "simply taking the jump;" (2) taking the jump despite risks she should
have understood; (3) taking a jump bigger than any she had tried before; (4) failing to
reach the jump's landing area; and (5) losing her balance when she was airborne.
Counsel argued against holding Vine responsible for taking a risky jump by noting that
she was a very experienced snowboard jumper, and that many others were taking this
particular jump, which was supposed to have been designed for anyone to use safely
regardless of its size. He argued against faulting Vine for her technique by contending
the jump's design was to blame for her loss of control.

25

Bear Valley's counsel, after referring the jury to the test for negligence provided in
BAJI No. 3.11 (whether an ordinarily prudent person in the same situation would have
anticipated injury), emphasized that snowboard jumping is a risky activity and Vine
deliberately chose to take this jump. He analyzed Vine's "jumping technique" at length,
noting her failure to build enough speed on her approach, her "stiff legged" and
backward-leaning posture instead of keeping a low center of gravity while balanced over
her board, and her flailing arms as she lost control in the air, causing her to land on her
back instead of her feet. Counsel pointed out that none of the other jumpers the jury saw
on the videotape had lost control in this manner.

The evidence of Vine's faulty performance of the jump was undisputed and
overwhelming. It came from witnesses for both parties. While the evidence that
snowboard jumping is risky was also undisputed, the attempt by Bear Valley's counsel to
direct the jury's attention to this factor found no support in the instructions. A failure to
exercise reasonable care to avoid injury under the circumstances was easily correlated
with Vine's failure, despite her considerable snowboarding experience, to properly
execute the fundamental jumping techniques. It was not easily connected to her decision
to accept the risks of snowboard jumping, as she had safely done many times before and
as many of her peers were doing without injury on the same day and on the same jump.

Even if the jury were inclined to consider the factor of risk in its allocation of
fault, the instructions given by the court provided Vine's counsel with a potent rejoinder.

In his rebuttal, he characterized Bear Valley's argument as "there are some risks here in
snowboarding, and because there are risks, we don't have to be careful." In his closing
comments to the jury, counsel dismissed risk as an irrelevant consideration: "Hey, risk,
risk in sport. That's not the way it goes. That's not what the jury instructions will tell
you. The jury instructions will tell you that if you could foresee somebody being injured
by your screwup, and you could avoid the screwup, that the failure to do so is
negligence."
The instructions, including the court's admonition to rely on the law as it was
stated in the instructions, fully supported counsel's legally erroneous argument. The
argument was improper because it was clear, under Knight, that risk in sport is indeed
"the way it goes" in actions to recover for injuries sustained while participating in
hazardous recreation. The instructions prevented the jury from considering assumption
of risk in an obviously appropriate context. Snowboarding is a classic example of a sport
that requires participants to assume considerable risks. It is fundamentally unfair for a
snowboarding injury case to go to a jury without any instruction on assumption of risk.

We cannot say the court's instructional error had no effect on the verdict.