Oral Argument Preview: The Court Tackles Sport and Recreational Activities Rules. Angel L. Horvath et. al. v. David Ish et. al.

Update: On November 20, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument in this case here.

On April 25, 2012, the Supreme Court of Ohio will hear oral argument in the case of Angel L. Horvath et. al. v. David Ish et. al. #2011-1089.  A skier and a snowboarder collided on the slopes in this winter sports accident case. The issues in the case involve the sport and recreational activity rules, whether recreational users owe any duties to each other, the defense of assumption of the risk, and whether Ohio’s ski safety statutes codified at Chapter 4169 can be used to impose negligence per se in this type of accident case.

On March 6, 2007, Angel Horvath went to Boston Mills Ski Resort near Akron, Ohio with her then-boyfriend and now-husband Eugene Horvath, also a party to the lawsuit.  The couple skied down Buttermilk Hill with Angel leading by about fifty feet when she was hit from behind by the defendant, David Ish, who was then fourteen years old.

Angel Horvath testified that she heard loud “playground” noises and screaming before being struck from behind.  The Horvaths were skiing on the slope while David Ish and his brother and cousins were snowboarding.  Ish lived near Boston Mills and snowboarded frequently.  He had an excellent reputation as a snowboarder and received a black diamond, which was the highest level award a snowboarder of his age could receive.

At the time of the accident, there are multiple accounts of what actually happened.  Eugene Horvath testified that Ish was cutting across Buttermilk Hill and looking behind him and did not see Angel when he struck her.  Ish’s brother, Tyler, who was snowboarding with him that day, testified that Horvath was downhill of Ish and that Ish struck Horvath from the right side, causing her to hit the ground.

Both parties understood the skier responsibility code, which states that downhill skiers enjoy the right of way and uphill skiers must yield to them and look out for downhill skiers.  But Horvath argued that Ish violated that code and behaved recklessly on the slopes and caused her serious and permanent injuries.

The trial court granted summary judgment for Defendants (Ish and his parents) finding both that the Ski Safety statutes created no duties between skiers (even though Ish was snowboarding, he fit the definition of a skier under the statute as a person using the ski facilities for snowboarding) and that that there was no evidence of either reckless or intentional conduct by Ish,  required for recovery under existing recreational activity precedent.

The Ninth District Court of Appeals reversed, finding that R.C. §4169.08(C), when read in conjunction with R.C. 4169.09, (holding a skier liable for any injury caused by a failure to fulfill any responsibilities established under Chapter 4169, ) clearly demonstrates the legislative intent to create a duty between skiers and snowboarders. The Court of Appeals also held and that there was a question of fact as to whether Ish was reckless.

Defendants posit three propositions of law in this appeal:

1.      A collision between a down-hill skier and snowboarder who are sharing a ski slope open for use by both skiers and snowboarders is an inherent and ordinary risk of recreational skiing primarily assumed by all skiers and snowboarders .

2.      Revised Code Chapter 4169 and the “responsibilities” of skiers listed in R.C. §4169.08(C) do not create legal duties owed between skiers and snowboarders which give rise to negligence per se.

3.  The Common Law Sport and Recreational Activity Rule Is the Legal Standard Which Governs a Skier’s Liability for an Injury to Another Skier Resulting from an Accidental Collision on a Ski Slope. R.C. §4169.09 Does Not Abrogate the Common Law Requirement to Prove Intentional Conduct or Recklessness Before Liability Will Be Imposed

Defendants argue that when a person goes to a ski slope, he or she assumes the risk of injuries that occur on the slopes, and that under long standing precedent in Ohio under the common law recreational activities doctrine, if accidents occur, recovery should only be granted in cases where there is intentional or reckless misconduct.  Skiing is a dangerous sport no matter what precautions are taken.  Primary assumption of risk is a complete bar to recovery, which negates any duty owed.

Turning next to the Ski Safety Statute, Defendants argue that the statute is ambiguous, because it does not even make clear who owes a duty to whom.  Because the statute is ambiguous, the Court must look to legislative intent, and the intent in Ohio— as with all other states with skiing—is to limit the liability of ski resort operators,  not  to establish statutory duties between skiers. Therefore this is not a case of negligence per se.

Finally Defendants argue that the common law rule here is clear:  When a person participates in a sporting event, he or she assumes the risk and there is no liability absent intentional or reckless conduct.  The General Assembly never intended to abrogate that common law sport and recreational activity principle, because it did so expressly between ski operators and skiers, but not between skiers. So, without evidence of reckless or intentional conduct, there is no liability for a collision between a skier and a snowboarder.

In response, Plaintiffs assert that there just aren’t that many ski slopes in Ohio, so there’s not a lot of case law on skiing accidents.  More to the point, according to Plaintiffs, is that Ohio courts hold assumption of the risk does not apply where the risk is not one that is inherent in the recreational activity itself.  And collisions with out-of-control snowboarders speeding backwards down hills is not an “inherent risk” of skiing.

Plaintiffs argue that negligence per se is not even an issue here because the Ninth District did not decide whether negligence per se applies to their claims. This is essentially a straw man argument crafted by the Defendants.  But if the Court were to decide this issue, Plaintiffs argue that violation of R.C. 4169.08 (C), which imposes explicit duties on skiers and snowboarders while on the slopes, should constitute negligence per se.

Finally, Plaintiffs assert that the real issue in the case is the disagreement over whether Ish was reckless. Reckless conduct creates a risk substantially greater than those traditionally associated with mere negligence.  Given Angel Horvath’s version of the events surrounding her injury, she believes Ish’s conduct was reckless, and that certainly as the Ninth District held, there is a genuine issue of fact on that issue that  makes summary judgment inappropriate.

This case will be argued  at the Marion  County Court House, as part of the Court’s off-site  Court program.

Student contributor: Sarah Topy

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One Response to Oral Argument Preview: The Court Tackles Sport and Recreational Activities Rules. Angel L. Horvath et. al. v. David Ish et. al.

  1. Bart Rosenberg says:

    I can hardly wait for the lawsuits from juvenile soccer games, when someone gets a bloody nose from an on-field collision. “If your child hadn’t been so reckless, my little darling wouldn’t have to suffer with post traumic stress disorder for the rest of her/his life. The lifelong psychiatric visits will cost millions, not to mention the loss of future wages from neuroses caused by your recklessness.” While I sympathize with the Horvaths, sports can be dangerous and participants know that. And that danger can’t be legislated or adjudicated away. Just $.02 from a non-lawyer.

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