Merit Decision: No Statutory Duty Between Colliding Skiers. Recovery only at Common Law and only if Recklessness is Proven. Horvath v. Ish.

Update: this case was settled and dismissed on May 19, 2015.

November 20, 2012, the Supreme Court of Ohio handed down a merit decision in Horvath v. Ish 2012-Ohio-5333. The case was argued April 25, 2012. By a 6-1 majority, in a decision written by Justice Stratton, the Court held that R.C. Chapter 4169 creates no tort duties between skiers. Skiers assume the risk of colliding with other skiers. They can recover under Ohio common law, but only if the actions of the skier who caused the collision were reckless or intentional. Justice Pfeifer concurred in a tiny part of the decision, but mostly dissented. I just love this case.  I teach torts, after all, and we have been studying assumption of the risk in sports activities this very week.  My students have just learned this common law rule.

Useful material in understanding this decision

Chapter 4169, entitled Ski Tramway Board, is a hodge-podge of ski resort regulations and limitations on liability.

R.C. 4169.09 (holding a skier liable for any injury caused by a failure to fulfill any responsibilities established under Chapter 4169)

R.C. 4169.08(C)   (statutory list of skiers’ responsibilities)

Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990).

Syllabus

Where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either “reckless” or “intentional” as defined in Sections 500 and 8A of the Restatement of Torts 2d.

Thompson v. McNeill, 53 Ohio St.3d 102 (1990.)

Syllabus
1. Between participants in a sporting event, only injuries caused by intentional conduct, or in some instances reckless misconduct, may give rise to a cause of action. There is no liability for injuries caused by negligent conduct, (Marchetti v. Kalish approved and followed.)

2.  A player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.

Case Background

Angel Horvath and her now husband Eugene were skiing downhill on a slope at the Boston Mills Ski resort when Angel collided with David Ish, then 14, who was snowboarding on the same hill. David collided with Angel from behind when he cut across the hill from the snowboarding area (For the purposes of this case David is considered a skier, because pursuant to R.C. 4169.01(A), the definition of skier includes a snowboarder).  Angel was injured in this collision.   The Horvaths sued Ish and his parents alleging that David had acted negligently, carelessly, recklessly, willfully, and wantonly in colliding with Angel.

The trial judge granted summary judgment to the Ishes on the ground that Chapter 4169 creates no duties between skiers.  In a split decision, the Ninth District Court of Appeals reversed, finding that R.C. 4169.08(C), when read in conjunction with R.C. 4169.09 clearly demonstrated the legislative intent to create a duty between skiers, and remanded the case to determine whether David Ish violated any statutory skier duties, and if so, whether such actions constituted negligence per se. The appeals court also alternatively found that a question of fact existed as to whether David was reckless.

Chapter 4169

Chapter 4169 establishes a Ski Tramway Board. The Court examined various parts of the statute, but ultimately agreed with the argument made by the Ishes—that while this statute defines a number of reciprocal responsibilities applicable to ski-area operators and visitors, and creates immunities for ski-area operators from personal injury lawsuits arising from the inherent risks of skiing, it does not create duties between skiers.  Thus, to resolve this tort case, the Court reverts to the common law of recreational activities.

 Common Law

In Marchetti v. Kalish  the Court adopted and approved Sections 500 and 8A of the Second Restatement of Torts, holding

“[w]here individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional as defined in [2 Restatement of the Law 2d, Torts, Section 500, and 1 Restatement of the Law 2d, Torts, Section 8A (1965)].”

Building from this precedent, in this case the Court held that skiing is a sport or a recreational activity. Collisions between skiers are an inherent risk of skiing.  Thus, skiers assume the risk of colliding with other skiers and can’t recover unless they can show the other skier’s actions were reckless or intentional.

Majority Conclusion

The high court agreed that there are genuine issues of material fact in the case, but only on the issue of whether David Ish’s actions were more than negligent.  To recover in the case the Horvaths will have to prove his actions were reckless or intentional.

Justice Pfeifer’s Partial Concurrence and Dissent.

The entire majority decision is eight pages.  Justice Pfeifer’s solo dissent is seventeen pages. Here’s a sample of his inimitable style:

“If legal issues were ski slopes, the one raised in this case would be a bunny hill. Somehow, the majority has careened down the hill and wound up smashed through the wall of the lodge.”

First, Justice Pfeifer’s partial concurrence– he agrees with the majority that summary judgment should not have been granted in this case.  But then, he skies off onto a slope of his own.

Justice Pfeifer dissents from the majority’s position that neither Chapter 4169 nor the common law creates a duty of ordinary care between skiers.

Pfeifer thinks Chapter 4169 does establish duties between skiers. He posits that the prevailing view on this subject nationally is that skiers are held to a reasonable standard of care, often codified in state ski safety statutes, to avoid injury to one another. He also believes there is a common law duty of ordinary care between skiers.

A Skier’s Statutory Duties

Pfeifer’s point is just because Chapter 4169 limits the liability of ski operators for injuries suffered by skiers doesn’t eliminate the liability of skiers for injuries to each other. To him, R.C. 4169.08 (C)sets forth a specific list of a skier’s responsibilities (e.g.—to refrain from causing collision with any person,) while R.C. 4169.09 “makes it crystal clear that a skier is liable for injuries he causes to other skiers by failing to meet the duties set forth in R.C. 4169.08(C).”

No Negligence Per Se, Though

While Justice Pfeifer agreed with the court of appeals majority that the statute does create duties between skiers, he disagreed with that court’s suggestion that such a statutory violation could constitute negligence per se (the appeals court had remanded this question to the trial court for consideration). On this point Pfeifer found that the statutory violation did not constitute negligence per se in this case because the statute only sets forth general rules of conduct to be followed. But to him, the statutory factors are certainly evidence of negligence. His discussion on when a statutory violation is or is not negligence per se is enlightening on a question that I know has occasionally puzzled my 1L torts students.

Common Law Duties, Dissent Viewpoint

Pfeifer also disagrees that at common law a skier can only recover if he or she can prove the other skier was reckless. He does not agree that collisions between skiers are an inherent risk of skiing. He would allow recovery for ski accidents under the common law for ordinary negligence. He backs this up with precedent from states in which there is a lot of skiing. He particularly urged the Court to follow the reasoning of the Connecticut Supreme Court in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004), which a four part test to evaluate the duty question between skiers. The elements of that test are set forth in ¶ 43 of the dissent. Justice Pfeifer believes the application of the four factors leads to the conclusion that “the proper standard of care owed by co-participants in the sport of skiing is that of reasonable care.” He believes that even if the majority correctly found that no statutory duty exists between skiers in Ohio, it should have found a common law duty of ordinary care.

Recklessness

Finally, Justice Pfeifer states that if recklessness is what is required for the plaintiff to prevail in this case, there is a genuine issue of fact in on this point. He would hold that any rules codified at R.C. 4169.08(C) that David Ish violated should be considered as evidence in determining recklessness.

Case Syllabus

Skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

Concluding Observations

At oral argument there were many questions about whether the statute created strict liability, negligence per se, had any standard at all, should have recklessness read into it, trumped the common law, or vice versa, but in the end the Court went with a ruling totally consistent with its common law jurisprudence on liability for injuries during recreational activities.

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