On January 29, 1994, Jennifer Campbell, then eleven years old, was skiing down the World Cup ski run at the Heavenly Valley Ski Resort when she stopped and removed her skis due to ice on the slope. She walked down the remainder of the hill, and at the bottom she sat down to put her skis back on.
At the same time, Eric Derylo, then age seventeen, was snowboarding down the same run. He stopped approximately 100 yards from the bottom and removed his snowboard due to fatigue and ice on the slope. After he had removed his feet from the bindings, the snowboard slid out of his control and down the slope, hitting Jennifer in the lower back.
An El Dorado County ordinance, as well as the Skier Responsibility Code posted at Heavenly Valley, require participants to wear a retention strap that attaches to the bindings of the board and is secured to the snowboarder’s leg or boot. Derylo’s snowboard was not equipped with such a strap on the day of the accident.
In the ensuing lawsuit, Derylo, now the defendant, moved for summary judgment on the basis of assumption of risk. After the trial court granted the motion on the ground that the danger of being injured by runaway snowboards was inherent in the sport of skiing and there was no evidence of recklessness on the part of defendant, Campbell’s lawyer decided to appeal.
The appellate court reversed the trial court’s decision, concluding that the "defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport. The doctrine of primary assumption of the risk is not an absolute bar to recovery on these facts, because the lack of a retention strap could be found by a jury to have increased the risk of harm to plaintiff beyond what was inherent in the sport of skiing. The defendant also did not establish as a matter of law that the lack of a retention strap was not a proximate cause of plaintiff’s injuries. Accordingly, summary judgment was improperly granted."