I've placed these two cases together because they both concern the same issue, both involve ski accidents at Mammoth Mountain, and are both of particular interest to me since I'm hoping to spend a good portion of my Spring Break at that fine ski facility. God, I love academia. What a life.
Both cases revolve around whether a particular skiing accident was caused by ordinary negligence -- in which case recovery by the injured party is barred by the doctrine of primary assumption of the risk -- or instead resulted from conduct that was reckless, in which case the defense does not apply. Both cases hold that the conduct at issue might well have been reckless, and thus reverse the grant of summary judgment to the skier who allegedly caused the accident. Interestingly, neither case cites the other. Also interestingly, in both cases, Mammoth Mountain wins. In the first case, Lackner, Mammoth Mountain is a defendant, and although Justice Blease reverses the grant of summary judgment in favor of the skier, he simultaneously affirms the grant of summary judgment in favor of Mammoth Mountain. In the second case, Graham, Mammoth Mountain is actually the plaintiff, and is suing to recover worker's compensation payments that it made on behalf of one of its ski instructors who was injured when the instructor was hit by a recreational skier. The trial court granted summary judgment against Mammoth Mountain, but Justice Nicholson reverses, holding -- as in Lackner -- that there is a genuine issue of material fact as to whether the conduct at issue was reckless instead of merely negligent.
Particularly taken together, these two cases demonstrate (1) that the line between reckless and negligent conduct is an incredibly fine one, as well as (2) the subtle -- or perhaps not-so-subtle -- pressure that the primary assumption of risk doctrine places upon that line. There's a reasonable argument that what both skiers in this case were doing (going fast and/or not paying attention) was merely negligent. But that would bar recovery. The Court of Appeal holds that there's a genuine issue of material fact, which means that both cases can go to the jury. Which, one might expect, will do "justice" in both cases.
Maybe there really is a GIMF in both cases. Maybe there isn't. Tough calls. But I do have a sense that the issue is hardly one with respect to which any reasonable observer can draw a principled distinction, much less a bright-line (or even determinate) rule. There's a lot of play in the joints here, and I wonder if that fact doesn't allow the justices to do a little case-specific "justice" of their own.
P.S. - Graham is also interesting because it slams -- in a big (and very public) way -- one of of the appellate attorneys, Ross Paulson, for allegedly deceiving the Court of Appeal at oral argument. Check out Part II of Justice Nicholson's opinion, which ends up referring the matter (and Mr. Paulson) to the State Bar. Ouch.
