The opinion of the court was delivered by: Oliver W. Wanger, United States District Judge
ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 33)
Plaintiff, Glenda M. Lewis, alleges she sustained injuries while participating in a guided snowmobile tour offered by Defendant, Mammoth Mountain Ski Area ("Defendant" or "Mammoth"). Doc. 25 at ¶ 16 First Amended Complaint ("FAC"). Plaintiffs' FAC alleges (1) Defendant negligently conducted the guided snowmobiling tour in which Plaintiff was allegedly injured; (2) Defendant should be considered a common carrier and breached the heightened duty of care owed by a common carrier to Plaintiff; (3) Defendant negligently maintained its premises resulting in Plaintiff's alleged injuries; (4) Defendant was grossly negligent in conducting the guided snowmobile tour; and (5) Plaintiff, Glenn E. Lewis, suffered loss of consortium as a result of his wife's injuries.
Before the court for decision is Defendant's Motion for Summary Judgment. Doc. 33, Defendant's Motion For Summary Judgment, filed Dec. 1, 2008. Defendant seeks judgment on the entire FAC, arguing that: (1) Plaintiffs assumed the risks of snowmobiling on Defendant's property by (a) signing a written waiver and release; (b) under California's primary assumption of the risk doctrine, barring Plaintiffs' negligence and premises liability claims; (2) Defendant is not a common carrier; (3) Plaintiffs have produced no evidence that Defendant was grossly negligent; and (4) Plaintiff cannot establish Defendant is liable for loss of consortium. Doc. 39, Defendant's Motion For Summary Judgment, filed Dec. 1, 2008.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant, Mammoth Mountain Ski Area, is a California corporation with its principal place of business in Mammoth Lakes, California. FAC at ¶ 2. Defendant owns and operates Mammoth Snowmobile Adventures ("MSA") which provides guests with guided snowmobile riding tours for a fee. FAC at ¶ 5.
A snowmobile is a gasoline engine powered machine that runs on skis across snow-covered ground at speeds up to 60 miles per hour. A snowmobile rider wears a seatbelt and helmet, but is otherwise exposed to potential physical injury from falling and impacting the terrain and any obstacles that may be encountered.
Plaintiffs, Glenda M. Lewis and Glenn E. Lewis, are residents of San Antonio, Texas. FAC at ¶ 1. Based on citizenship and amount in controversy, the diversity jurisdiction of the court is properly invoked.
On April 5, 2005, Plaintiffs signed up for a guided snowmobile tour with MSA. FAC ¶ 6. It is undisputed that Plaintiffs paid a fee for the snowmobile tour and signed a "Participant Agreement Release And Acknowledgment of Risk" (the "Participant Agreement"). Doc. 48, Plaintiffs' Response To Separate Statement of Undisputed Material Facts ("PUMF") at ¶ 2, filed Jan. 23, 2009. The text of the Participant Agreement appears in 10-point Times New Roman font, while titles and other language appear in 14-point and 16-point fonts. Doc. 49, Plaintiffs' Statement of Additional Material Facts ("PAMF") at ¶¶ 13, 15. Certain portions of the text appear in bold and/or are italicized. PAMF at ¶ 15.
The first page of the Participant Agreement reads in pertinent part:
In Consideration of services of MAMMOTH SNOWMOBILE ADVENTURES,...I hereby agree to release and discharge "MSA"...as follows:
(1) I acknowledge that snowmobiling entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity. These risks include, but are not limited to: riding on uneven snow covered terrain, changing snow conditions and variations in elevations....[MSA guides] might be ignorant of a participant's fitness or abilities. They might misjudge the weather, the elements, or the terrain. They may give inadequate warnings or instructions....
(2) I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks. I accept full responsibility for any damages or injury of any kind arising out of the operation of said snowmobile.
(3) I thereby voluntarily release, forever discharge, and agree to indemnify and hold harmless "MSA" from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of "MSA"'s equipment or facilities, including any such Claims which allege negligent acts or omissions of "MSA"....
Doc. 38 (original font size and emphasis maintained), Defendant's Separate Statement of Undisputed Material Facts ("DUMF") at ¶ 3, filed Dec. 1, 2008.
The second page reads in pertinent part:
By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit against "M SA" on the basis of any claim from which I have released them herein.
I have had sufficient opportunity to read this entire document. I have read and understood it and I agree to be bound by its terms.
Id. (original font size and emphasis maintained).
Both plaintiffs read the entire release prior to signing it.*fn1 Glenn. Depo. at 106.
The MSA tour was led by MSA guide, Chris Hosking.
Mr. Hosking has been a snowmobile tour guide with MSA for seven years. DUMF at ¶ 13. He estimates that during his tenure with MSA he guided over 8,000 guests and rode over 40,000 miles of snow-covered terrain. DUMF at ¶ 20.
Each year, MSA trains new and returning guides. DUMF at ¶ 16. MSA manager, Robert Colbert, conducts a two-day seminar training in which he instructs the guides on tour operation, guest interaction, guest safety, and MSA policies and procedures. DUMF at ¶ 16.
On April 5, 2005, Mr. Hosking instructed Plaintiffs, and other participants, on how to operate the snowmobile during a brief orientation prior to the tour. Glenn Depo. at 25. Plaintiffs did not ask Mr. Hosking any questions during or after the orientation. Glenn Depo. at 28. Plaintiffs recall that Mr. Hosking did not provide instruction on how to handle becoming airborne and that he failed to provide additional instruction on off-trail snowmobile riding. PAMF at ¶ 5.
After the orientation session, Plaintiffs, along with the rest of the tour group, departed on their guided tour. Plaintiffs rode together on one snowmobile: Mr. Lewis drove the snowmobile while Mrs. Lewis rode as a passenger behind Mr. Lewis. DUMF at ¶ 5. It is undisputed that each rider participating in the snowmobile tour controlled his or her snowmobile at all times: specifically, through the snowmobile's throttle, brake, and handlebars. DUMF at ¶¶ 8-11. Defendant states that each rider was at liberty to choose his or her own path. DUMF at ¶ 12. However, Plaintiffs believe that riders participating in the tour were not free to go in any direction at any time. PAMF at ¶ 12. Rather, Plaintiffs state that Mr. Hosking led the tour group, decided both the on-trail and off-trail routes, and that Mr. Hosking set the pace for travel. PAMF at ¶¶ 9-12.
Initially, Mr. Hosking led the group along established trails. Glenn Depo. at 28. Later in the tour, Mr. Hosking asked the group if they would like to go "off trail". Glenn Depo. at 37-38. Several members of the group answered affirmatively; however, Plaintiffs remained silent and followed the group off trail. Glenn Depo. at 38.
It is undisputed that while off trail, Plaintiffs encountered a windridge, which is caused by "wind blowing snow and building a hump and an eddy." DUMF at ¶ 7. Defendant states that the windridge in question here was a two to three foot variation in terrain. DUMF at ¶ 6. However, Plaintiffs' witnesses recall the drop being closer to three to six feet. PUMF at ¶ 6. Plaintiffs went over this windridge, which in turn caused them to become airborne. DUMF at ¶ 6. Upon landing, Mrs. Lewis sustained injury. DUMF at ¶ 6.
Mr. Lewis heard Mrs. Lewis yell out and immediately pulled the snowmobile over and checked on Mrs. Lewis. Mr. Lewis discovered that she was in a lot of pain and subsequently summoned Mr. Hosking. Glenn Depo. at 52. Mr. Hosking recommended calling ski patrol so that Mrs. Lewis could be evacuated by toboggan. Glenn Depo. at 52. However, Mrs. Lewis refused treatment and rode the snowmobile, as a passenger, back to the MSA base where she then sought medical attention. Glenn Depo. at 52.
Mrs. Lewis filed suit in this court on March 29, 2007 seeking damages for injuries sustained while snowmobiling on the MSA tour. Mr. Lewis joined her suit alleging loss of consortium resulting from Glenda's injuries purportedly caused by Defendant.
III. DECISIONAL STANDARDS
Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. Pro. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). The evidence must be viewed in a light most favorable to the nonmoving party. Indiana Lumbermens Mut. Ins. Co. v. West Oregon Wood Products, Inc., 268 F.3d 639, 644 (9th Cir. 2001), amended by 2001 WL 1490998 (9th Cir. 2001). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Liberty Lobby, Inc., 477 U.S. at 248).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of proof, the non-moving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Triton Energy Corp., 68 F.3d at 1221. The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux, 263 F.3d at 1076.
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time who fails to make a showing sufficient to for discovery and upon motion, against a party to the party's case, and on which that party establish the existence of an element essential will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial Celotex Corp., 477 U.S. at 322-23.
"In order to show that a genuine issue of material fact exists, the nonmoving party must introduce some 'significant probative evidence tending to support the complaint.'" Rivera v. AMTRAK, 331 F.3d 1074, 1078 (9th Cir. 2003) (quoting Liberty Lobby, Inc., 477 U.S. at 249). If the moving party can meet his burden of production, the non-moving party "must produce evidence in response....[H]e cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements." Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). "Conclusory allegations unsupported by factual data cannot defeat summary judgment." Rivera, 331 F.3d at 1078 (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001)).
A. Negligence Claim - Assumption of Risk
Defendant moves for summary judgment on Plaintiffs' negligence claim, arguing that (1) Plaintiffs waived their right to sue on a negligence theory by signing the Participant Agreement; and, alternatively, (2) that California's primary assumption of the risk doctrine precludes negligence liability as a matter of law in this case.
The issue of assumption of the risk is a question of law, which may properly be decided on a motion for summary judgment. See Knight v. Jewett, 3 Cal. 4th 296, 313 (1992); Muchhala v. United States, 532 F. Supp. 2d 1215, 1228 (E.D. Cal. 2007) (citing Knight and deciding issue of primary assumption of risk on summary judgment); Randall v. Mammoth Mountain Ski Area, 63 F. Supp. 2d 1251, 1253 (E.D. Cal. 1999) (same). Both express assumption of the risk and primary assumption of the risk are amenable to summary adjudication. In the context of express assumption of risk, Knight stated that "as a result of an express agreement, the defendant owes no duty to protect the plaintiff from injury-causing risk." Id. at 308 n.4. Comparably, when ...