What’s On Their Minds?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.

On April 25, 2012 the Supreme Court of Ohio heard oral argument in the case of Angel L. Horvath et. al. v. David Ish et. al. #2011-1089. Angel Horvath was skiing downhill when she was hit from behind by then 14 year old David Ish, who was snowboarding.

At the time of the accident, there are multiple accounts of what happened. Read the oral argument preview of this case here.

The trial court granted summary judgment for Defendant Ish and his parents, finding that  Ohio’s ski safety statutes, codified at R.C. 4169, 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 the common law.  The Ninth District Court Appeals reversed in a split decision, finding there were questions of fact about recklessness that needed to be resolved on remand. The appeals court also wrote that on remand the trial court should consider the “interplay of R.C. Chapter 4169 and the common law: if violation of the statutory duties of skiers gives rise to negligence per se; does that supplant the common law with respect to assumption of the risk in recreational activities.”

Counsel for Ish urged a reading of the Ski Safety Statute that is compatible with the Court’s common law precedent on liability in recreational activities, which has long required reckless or intentional conduct for recovery.

Counsel for the Horvaths argued that the court of appeals very appropriately wrote a very narrow opinion, that there was a genuine issue of fact on recklessness, and that on remand the trial court should sort out the interplay between the statute and the common law. The statute does allow for recovery for negligent conduct, defines duties between skiiers, and prevails over the common law.

The Court seemed to be struggling to find its footing in this case (no pun intended).  What exactly was it being asked to decide?

What Exactly Was Remanded?

Just the issue of recklessness, or the interplay between the common law and the statute, asked Justice McGee Brown

(Hovarth’s counsel maintained all along that the court of appeals had remanded , not decided, the issue of the interplay between the common law and the statute, and although it was unusual to argue an issue for the first time in the Supreme Court, he gamely went on to do so.)

And What Exactly Do You Want Us to Do?

Just affirm the court of appeals and send this back for a trial on recklessness? asked Justice O’Donnell. Is this a trial on recklessness or a summary judgment matter?

 AW C’Mon.  Ohio Isn’t Exactly Ski Territory

Justice O’Donnell asked if there was helpful precedent from state supreme courts where there actually was skiing, like Utah or Colorado.

So, this statute…

Does it Create Strict Liability?

Asked Justice Cupp

Does it Create Negligence per se?

Asked Justice Pfeifer, or does it just define what would otherwise be common law negligence on the slopes?

Does it have any standard in it at all?

Asked Chief Justice O’Connor,

But Shouldn’t We Read Recklessness into it?

Asked the Chief and Justice McGee Brown

Does it Prevail Over and Eclipse the Common Law?

Asked Justice O’Donnell

Or Does the Common Law Trump the Statute?

Asked Justice Pfeifer

If The Statute Does set a Negligence standard, Would This be the Only Sport Outside the Recreational Use Doctrine?

Asked Justice Stratton

And to read the statute that way is contrary to the common law and the history of the sport of skiing, and to the way the sport is actually done, mused Chief Justice O’Connor

And What About Assumption of the Risk?

Does every skier on the slopes assume the risk of injury, asked Justice O’Donnell (he asked a lot of questions) So when a collision occurs there is no liability for any skier?

Is negligent conduct an inherent risk of the sport, asked Justice Lanzinger (yes, said Ish’s lawyer—courts around the country have held that a collision which is the result of negligent conduct is an inherent risk of skiing.)

Does assumption of the risk attach only with the common law claim?—there is no assumption of the risk with a statutory claim? asked Chief Justice O’Connor (yes said Horvaths’ lawyer)

What is Recklessness in Skiing?

(The court has been dealing with the issue of recklessness a lot lately-in two sovereign immunity cases it is struggling with the definition in the context of exceptions to immunity)

Chief Justice O’Connor asked whether the record established any evidence of recklessness by Ish (no, said his lawyer)—Then what caused the collision (inattention—a negligence standard) But couldn’t hotdogging or excessive speeding be reckless? She later mused that an out-of-control skier was not a negligent skier, but a reckless one

Justice Stratton asked about some testimony about a loud noise that may have startled Ish-Maybe he had to look sidewise to see if there was some danger-wasn’t that reasonable under the circumstances?

Justice Cupp noted that not looking where you were going might be reckless in  skiing, but if driving would be only negligence—were the rules of skiing unique?  What made that conduct more culpable on the slopes than on the highway?

How it Looks from the Bleachers

Even though the court of appeals did not decide whether the Ski Safety statute created duties between skiers and whether it sounds in negligence or created negligence per se, but instead sent the whole issue of the interplay between the common law and the statute back to the trial court, the Supreme Court of Ohio is very unlikely just to decide whether the court of appeals was right or wrong to overrule summary judgment on the issue of recklessness in this case. The Court is most likely going to interpret the Ski Safety Statute, (which after all contains no explicit standard), and there appears to be  at least four votes to read a recklessness standard into the statute to be consonant with the longstanding common law rules on recreational activites—for a plaintiff to recover the defendant must be either reckless or have acted intentionally.

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