Alpine Esoterica

Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, No. C082306 (D3 Jul. 18, 2018)

Plaintiff in this case suffered some pretty gruesome injuries when she skied into a snow-grooming tiller being pulled by a snowcat. But the trial court granted summary judgment on a primary assumption of risk theory, reasoning that hitting a grooming snowcat is an inherent risk of skiing, and because the evidence didn’t support gross negligence. In opposition to the latter point, plaintiff proffered the declarations of several purported expert witnesses, who asserted that driving a snowcat with a grooming tiller on an open slope was an extreme departure from the standard of care.

Expert testimony has limited utility on the assumption of risk doctrine. Most of the issues—whether the activity is an active sport, its inherent risks, and whether defendant has acted to increase the risks beyond the inherent ones—are treated as questions of law. That said, courts have discretion to receive expert testimony to inform the factual basis for those legal decisions, particularly when the activity at issue and its risks are outside the realm of ordinary experience. 

Problem here, though, is that the experts’ declarations weren’t useful to that exercise. While opining that the standard of care was grossly breached in the context of the facts of the case, they did not actually set out what the industry standards were so that the court could make a comparison. As the Court of Appeal explains: “The problem with plaintiffs’ argument is that the experts’ declarations did not inform the court on the customary practices of the esoteric activity of snowcat driving.” (quotations omitted).

Affirmed.