In Horvath v. Ish, the Supreme Court held that a skier injured in a collision with another skier may recover damages only by showing that the other person was acting recklessly or intentionally at the time of the collision.

In Horvath v. Ish, the Supreme Court held that a skier injured in a collision with another skier may recover damages only by showing that the other person was acting recklessly or intentionally at the time of the collision.

The Supreme Court of Ohio ruled today that persons who engage in the sport of skiing assume the ordinary risks of that activity, which include collisions with other skiers, and cannot recover from another skier for injuries suffered in a collision absent a showing that the other skier’s actions were reckless or intentional.

The court’s 6-1 decision, authored by Justice Evelyn Lundberg Stratton, affirmed a decision of the Ninth District Court of Appeals, but did so based on a somewhat different legal analysis than the appellate panel.

The case arose from a collision between a skier, Angel Horvath, and a juvenile snowboarder, David Ish, at the Boston Mills ski resort in Summit County.  Horvath was injured in the collision.  She and husband, Eugene Horvath, filed a personal injury lawsuit against Ish and his parents, alleging that Ish had acted negligently, carelessly, recklessly, willfully and wantonly in causing the collision.

The Ishes filed a motion for summary judgment arguing that skiers are subject to primary assumption of the risk, which means that a defendant owes no duty of ordinary care to a plaintiff.  Thus, the Ishes argued that in order to recover, the Horvaths were required to prove that David had acted recklessly or intentionally in causing the collision.  The Ishes further asserted that there was no evidence that David’s actions were reckless or intentional.  In opposing the Ishes’ motion for summary judgment, the Horvaths argued that a state law regulating ski resorts, R.C. 4169.08(C), imposes specific duties on skiers and that breaching those duties is negligence per se.  The trial court granted the Ishes’ motion for summary judgment.

The Horvaths appealed.  In a 2-1 decision, the Ninth District Court of Appeals reversed the trial court’s judgment,  stating that ‘[b]y reading R.C. 4169.08(C) in context with 4169.09, we find that it is evident that the legislature intended that skiers would be liable for injuries caused to others while skiing.’  The court of appeals remanded the case to the trial court to determine whether David Ish’s actions violated any of the responsibilities described in R.C. 4169.08(C) and, if so, whether any such violation invoked the doctrine of negligence per se.

The Ishes sought and were granted Supreme Court review of the Ninth District’s ruling.

In today’s decision, Justice Stratton analyzed each of the major subsections of R.C. 4169.08 and 4169.09, and the legislative intent underlying those provisions, and concluded that “R.C. 4169.08 insulates ski-area operators from liability for injuries that arise from the inherent risks of skiing and otherwise defines certain responsibilities applicable to ski-area operators and ski-area visitors.  R.C. 4169.09 addresses the liability of ski-area operators and ski-area visitors for failing to comply with the responsibilities enumerated in R.C. 4169.08(C).”

“It is evident that R.C. Chapter 4169, when viewed in its entirety, addresses certain obligations and limitations on liability pertaining to ski-area operators, as well as the relationship between ski-area operators and ski-area visitors.  ... (R)eading R.C. 4169.08(B) and (C) in context with R.C. Chapter 4169, we find that the responsibilities of ski-area operators and ski-area visitors are reciprocal.  In other words, the General Assembly intended that ski-area operators owe skiers certain enumerated responsibilities, and in return skiers owe ski-area operators certain enumerated responsibilities.”

“Thus, we hold that R.C. 4169.08(C) does not create a duty of care that applies between skiers. Accordingly, we hold that R.C. Chapter 4169, and in particular, R.C. 4169.08 and 4169.09, do not apply to personal-injury litigation between skiers.”

With regard to the proper standard of care applicable to personal injury claims by one skier against another, Justice Stratton cited the Supreme Court of Ohio’s holding in Marchetti v. Kalish (1990) that “[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 ... ”

She also quoted with approval from a decision of the Pennsylvania Supreme Court, Hughes v. Seven Springs Farms (2000), in which that court held that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions. As anyone who has ever undertaken the sport of skiing is painfully aware, it is a sport in which it is common for the participants to lose control.”

Citing similar holdings in court decisions from Minnesota, California and New York, Justice Stratton concluded: “We agree that collisions between skiers are an inherent risk of skiing. Accordingly, we hold that 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.”

Because the trial court in this case granted summary judgment in favor of the Ishes finding that there was no evidence that David’s conduct was reckless or intentional, Justice Stratton wrote: “The judgment of the court of appeals is affirmed, albeit on somewhat different grounds.  We agree that there is a genuine issue of material fact to be considered, but only with regard to whether Ish’s actions were more than negligent, that is, whether he acted recklessly or intentionally.  Because a genuine issue of fact remains, the court of appeals was correct in holding that the trial court erred in granting summary judgment. Therefore, we affirm the appellate court’s judgment, and we remand this cause to the trial court for further proceedings in accordance with this opinion.”

Justice Stratton’s opinion was joined by Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.

Justice Paul E. Pfeifer entered a separate opinion in which he agreed that the case should be remanded to the trial court for further proceedings, but disagreed with the majority’s legal analysis.

Specifically, Justice Pfeifer asserted that, contrary to the majority’s holding, when R.C. 4169.08 and 4169.09 are read together, they set forth a statutory scheme of safe-skiing requirements and create a duty of ordinary care between skiers to comply with those requirements. Based on that interpretation and the plain language of R.C. 4169.09, he wrote, a skier who causes injury or loss to another skier while violating  a statutory safety standard is liable to the other party based on a theory of negligence, and the injured party should not be required to meet the higher evidentiary standard of showing that the defendant acted recklessly or intentionally.

In support of that position, Justice Pfeifer cited court decisions from multiple other states including Michigan, Connecticut, Vermont and Utah.  He wrote: “I dissent from the majority’s holdings that neither Ohio’s ski statutes nor the common law creates a duty between skiers.  An accident like the one in this case is not one that a person would assume would take place when undertaking the pleasant family activity of skiing.  Children, seniors, beginners, and handicapped people use ski slopes; to require, as the majority does, no greater standard of care than to refrain from recklessness, will make Ohio’s ski areas more dangerous for everyone. ‘[C]ontact between skiers is neither a part of the sport that skiers agree to confront by their participation, nor is it an inevitable byproduct of the sport of skiing.’

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2011-1089. Horvath v. Ish, Slip Opinion No. 2012-Ohio-5333.
Summit App. No. 25442, 194 Ohio App.3d 8, 2011-Ohio-2239.  Judgment affirmed.
O’Connor, C.J., and Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., concurs in part and dissents in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5333.pdf

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