Solis
Solis v. Kirkwood Resort Co.
Opinion
Opinion
Morrison, J.
Mario (plaintiff) and Janelle Solis sued Kirkwood Resort Company (defendant, the true name of which is Kirkwood Mountain Resort, LLC), after a ski accident. The trial court granted defendant’s motion for summary judgment, finding plaintiff signed a release of negligence liability which embraced this accident, and that defendant owed no duty to plaintiff under the primary assumption of the risk rule. Plaintiff filed a timely notice of appeal from the ensuing judgment.
We conclude plaintiff established an ambiguity in the release and a jury could find it was not intended to cover this accident. Moreover, there is a critical factual question regarding whether defendant increased the risk of harm to skiers beyond that inherent in the sport. We reverse.
Standard of Review
Summary judgment is properly granted to a defendant who shows without refutation that a plaintiff cannot establish an essential element of his cause of action or that there is an affirmative defense which bars recovery: Our review is de novo. (Code Civ. Proc., § 437c, subds. (n), (o)(2); Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844 [ 30 Cal.Rptr.2d 768 ].)