Opinion
PARRILLI, J. In personal injury cases arising from sporting activities, a defendant cannot be charged with a duty to protect the plaintiff from risks inherent in the sport. Those risks are borne by the plaintiff as a matter of law, under the “primary assumption of risk” doctrine. However, the defendant can be held liable for breaching the duty not to increase the risks encountered by the plaintiff beyond the level inherent in the sport. This is an aspect of “secondary assumption of risk,” which operates as part of the comparative fault scheme. The plaintiff’s acceptance of the risk is weighed together with the defendant’s breach of duty as the trier of fact determines the parties’ proportionate responsibility for the injury. (Knight v. Jewett (1992) 3 Cal.4th 296, 314-316 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004 [4 Cal.Rptr.3d 103, 75 P.3d 30] (Kahn); American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 36-37 [93 Cal.Rptr.2d 683].)
Here, a jury was asked to determine whether a ski resort “was negligent in the design, construction, testing, or supervision of the snow board jump on which plaintiff was injured.” The trial court refused to instruct the jury on assumption of risk, instead giving ordinary negligence and contributory negligence instructions. This was reversible error. Although assumption of risk has been “merged into the comparative fault scheme” in its secondary aspect (Knight, supra, 3 Cal.4th at p. 315), the doctrine still poses distinct [583]questions regarding the parties’ relative responsibilities. These questions must be properly framed for a jury.
We also hold that ski resort employees who are not covered by workers’ compensation for injuries sustained while participating in recreational activity on their own initiative may not claim the protection of Labor Code section 2801. That statute bars employers from raising assumption of risk as a defense in negligence actions by employees injured in the course of their employment.
BACKGROUND
Charlene Vine suffered a broken back, resulting in paraplegia, when she fell while attempting a snowboard jump at an employee party hosted by her employer, Bear Valley Ski Company (Bear Valley) after the end of the public ski season. A Bear Valley employee had reshaped the jump, using a snow cat, for use by guests at the party. Vine sued Bear Valley, contending the jump was a dangerous condition that increased the risks to snowboarders beyond those inherent in the sport. A jury awarded her $3,727,000 in special damages and $713,000 in noneconomic damages. Vine moved for a new trial on noneconomic damages. The trial court granted the motion, but ruled the judgment would be affirmed if Bear Valley accepted an additur of nearly $5.3 million in noneconomic damages. Bear Valley rejected the additur and appealed from both the judgment and the order granting a new trial. We have consolidated the two appeals.
We discuss further procedural and factual details below, in connection with the issues raised by Bear Valley. Bear Valley contends the trial court erred by: (1) ruling in limine that workers’ compensation was not Vine’s exclusive remedy; (2) denying Bear Valley’s motion for summary judgment based on a release executed by Vine; (3) denying summary judgment based on primary assumption of risk; (4) failing to instruct the jury on primary assumption of risk, secondary assumption of risk, or “the obvious hazard doctrine;” and (5) granting a new trial on noneconomic damages. Because the instructional error requires reversal, we need not address the propriety of the new trial ruling.
DISCUSSION
1. The Workers’ Compensation Bar
Bear Valley first raised the workers’ compensation issue in a motion for summary judgment. The court denied the motion, finding triable issues of fact as to whether Vine was in the course and scope of her employment at the time of the injury, and whether she was exempted from the worker’s [584]compensation scheme by Labor Code section 3352, subdivision (f). Under that provision, “[a]ny person employed by a ski lift operator to work at a snow ski area who is relieved of and not performing any prescribed duties, while participating in recreational activities on his or her own initiative” is not an “employee” for workers’ compensation purposes.
The parties revisited the issue in a jointly filed pretrial motion, asking the trial court to determine whether Vine’s remedy was limited to workers’ compensation based on the following stipulated facts:
“[Plaintiff’s injury was sustained in the course and scope of her employment.
“Plaintiff was defendant’s employee.
“Plaintiff was injured during a corporate function.
“The corporate function was an employee party.
“Plaintiff’s accident resulted from her engaging in a recreational activity (snowboard jumping).
“The recreational activity was part of the party’s entertainment.
“Plaintiff was providing working assistance at the party before she went snowboarding.
“Defendant re-shaped portions of the jump on which plaintiff was injured specifically for the party.
“The ski area was not open to the general public on the date plaintiff was injured.
“Eric Bottomley is the Vice President of Operations for Bear Valley Ski Company.
“If Charlene Vine and Eric Bottomley were called to testify, they would testify as per the attached.”
“Eric Bottomley, if called to testify, would also state that he had spoken with Charlene Vine in advance of the employee party about needing her help during the event.”
[585]The parties attached excerpts from the depositions of Bottomley and Vine. Bottomley testified that employees were not required to attend the party. Vine had agreed to help him as a volunteer with bartending and a raffle. After working for a while she was “just hounding and hounding” Bottomley to let her go snowboarding, and he finally agreed.
Vine testified it was the season-ending party for Bear Valley employees and their families. The facility was closed to the general public. She had not planned on snowboarding that day, but a contest had begun and “a couple of people had come up to me and told me there w[ere] no girls entered and they wanted me to go snowboarding.” She changed into her ski clothes and took a couple of jumps off a small jump on the edge of a sun deck. People were cheering and someone was announcing over a microphone. Vine did not remember the circumstances under which she decided to go to a larger jump on a nearby hill, where her injury occurred. “I just remember there was a bunch of people headed toward the jump, and the next thing I remember is standing next to the jump . . . .”
Vine contended she was exempted from the workers’ compensation scheme by Labor Code section 3352, subdivision (f) because she was employed by Bear Valley to work at its ski area, and was snowboarding on her own initiative during a break from her bartending duties when she was injured. Bear Valley noted the workers’ compensation statutes are liberally construed in favor of coverage. (Lab. Code, § 3202.) It argued that once Vine stipulated she was in the course and scope of her employment, she could not claim she was “not performing any prescribed duties” and “participating in recreational activities on . . . her own initiative” within the meaning of Labor Code section 3352, subdivision (f). Bear Valley emphasized that snowboarding was an anticipated feature of the party, and Vine was encouraged to participate by her peers.
In response, Vine observed Labor Code section 3352, subdivision (f) was enacted in response to a Colorado Supreme Court decision holding that a ski resort bartender was in the course of his employment when he was injured while skiing during his time off, using his employee ski pass. (Dorsch v. Industrial Commission (1974) 185 Colo. 219 [523 P.2d 458, 460]; see Northstar at Tahoe v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1481, 1485 [50 Cal.Rptr.2d 475].) Thus, it did not matter that she had stipulated she was in the course of her employment; the Legislature acted to exempt ski resort employees from coverage during off-hour recreational activity precisely because that activity might be considered part. of “the course of their employment.”
The court agreed with Vine, and ruled that Labor Code section 3352, subdivision (f) exempted her from workers’ compensation coverage. Bear [586]Valley challenges that finding. It contends application of the statutory exemption to the stipulated facts is a question of statutory interpretation subject to our independent review.
At oral argument, Bear Valley suggested that once a ski resort employee arrives at an employer-sponsored party (assuming the party is within the course of the employment), all injuries suffered during recreational activities provided by the employer are covered by workers’ compensation as a matter of law—that is, the activity cannot be considered to have been undertaken on the employee’s “own initiative” under Labor Code section 3352, subdivision (f).
We disagree. Participation in the resort’s recreational activities is a common feature of employment at ski resorts. The mere fact that the activity occurs at an employee-only party is not enough to take it out of the scope of the exemption provided by the Legislature specifically for such recreational activity. Determining whether an employee participated on her “own initiative” requires examination of the particular circumstances, including the extent to which the employer sponsored, encouraged, supervised, or otherwise participated in the activity.
Vine correctly argues that the trial court’s finding on this issue is subject to the substantial evidence standard of review. The application of Labor Code section 3352, subdivision (f) to the stipulated facts is a mixed question of law and fact, which is predominantly factual and “requires application of experience with human affairs;” therefore, it is governed by the substantial evidence test. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [264 Cal.Rptr. 139, 782 P.2d 278].) When conflicting inferences may be drawn from stipulated facts, we must accept the trial court’s resolution of the conflict if it is supported by reasonable inference. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632-634 [80 Cal.Rptr.2d 378]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2003) ][ 8:60, p. 18-23.)
Here, while Bear Valley reshaped the jump for use by its employees at the party, there was no evidence it overtly encouraged Vine to participate, or that its representatives took an active role in employees’ use of the jump. There was strong evidence that Vine herself persistently lobbied Bottomley to be released from her duties at the party to go snowboarding. Reasonable inferences from the stipulated facts support the trial court’s determination that she went snowboarding on her own initiative, and thus came within the exemption provided by Labor Code section 3352, subdivision (f).
[5872]. Labor Code Section 2801
Before we address Bear Valley’s assumption of risk arguments, we consider Vine’s claim that Labor Code section 2801 precluded Bear Valley from raising assumption of risk as a defense. This argument was presented to the trial court in the parties’ joint pretrial motion, along with the worker’s compensation issue discussed above. The court rejected the claim, and properly so. Our review of this question of statutory interpretation is de novo. (Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290 [135 Cal.Rptr.2d 665, 70 P.3d 1076].)
The relevant provisions of Labor Code section 2801 state: “In any action to recover damages for a personal injury sustained within this State by an employee while engaged in the line of his duty or the course of his employment as such ... in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer .... [f] It shall not be a defense that: [][] (a) The employee either expressly or impliedly assumed the risk of the hazard complained of.” Section 2801 appears in division 3 of the Labor Code, and applies only if an employee is not covered by the workers’ compensation scheme. (Lab. Code, § 2700; Devens v. Goldberg (1948) 33 Cal.2d 173, 176-177 [199 P.2d 943].)
Vine contends it is consistent to hold that she was both “in the course of [her] employment” at the time of her injury for purposes of Labor Code section 2801, and “not performing any prescribed duties, while participating in recreational activities on . . . her own initiative” for purposes of the exemption from workers’ compensation coverage provided by Labor Code section 3352, subdivision (f). She notes Labor Code section 3352, subdivision (f) is predicated on the notion that exempted employees are “in the course of employment” for workers’ compensation purposes (otherwise, there would be no need for an exemption). She also argues that while the exemption excluded her from the definition of “employee” in the workers’ compensation scheme, the Supreme Court has stated that the benefits of Labor Code section 2801 may be extended to a plaintiff who is not an “employee” for workers’ compensation purposes. (Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802, 811 [167 P.2d 729].)
We are not persuaded. Just as “employee” status may operate differently under Labor Code section 2801 and the workers’ compensation scheme, so may the “course of employment” determination. Labor Code section 2801 refers to “the course of [] employment as such” (italics added), suggesting the Legislature contemplated a more restrictive application of “course of employment” than it has prescribed in the workers’ compensation statutes, which include off-duty recreational activities if they are a reasonable [588]expectation of the employment. (Lab. Code, § 3600, subd. (a)(9); see Kidwell v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1130, 1136 [39 Cal.Rptr.2d 540].) Employees voluntarily taking advantage of such recreational benefits are not the intended beneficiaries of Labor Code section 2801, which is based on the rationale that “ ‘the employee is in a weak economic position, that he is unable to risk refusal to work in an unsafe place or with an unsafe appliance, hence should not be held to the penalty imposed on one who acquiesces in a danger.’ [Citation.] . . . [T]he workman has no alternative but the loss of his livelihood; it is his poverty and not his will which consents, and economically he is no more free to leave his employment than a soldier or a sailor.” (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 368 [104 Cal.Rptr. 566].)
Furthermore, Vine’s interpretation of the statute would lead to absurd results. Ski resorts would be barred from raising assumption of risk defenses, express or implied, in actions by employees injured while skiing on their own time side by side with members of the public who have signed releases expressly assuming the risk of the hazards associated with the sport, or who would otherwise be subject to the implied assumption of risk defenses. Vine, of course, happened to be injured at an employee-only party, but her reading of Labor Code section 2801 would apply equally to the more typical situation in which an off-duty employee is injured while skiing during the regular season. (See, e.g., Northstar at Tahoe v. Workers’ Comp. Appeals Bd., supra, 42 Cal.App.4th at p. 1484.)
Nothing suggests the Legislature meant to treat ski resort employees enjoying the recreational opportunities afforded by their employment differently from the general public, which pays for the privilege of using a resort’s facilities and assumes the well-known risks of doing so.1 “It is the duty of the courts, whenever possible, to interpret statutes so as to make them workable and reasonable, and to avoid absurd applications.” (Northstar at Tahoe v. Workers’ Comp. Appeals Bd., supra, 42 Cal.App.4th at p. 1485.) It would be unreasonable to bar the assumption of risk defenses in cases brought by ski resort employees injured during off-duty recreation, while permitting the resort to raise those defenses in actions by its customers. Such a rule might well lead to the loss of the ski pass as a form of compensation for resort employees. We hold that ski resort employees who are exempt from workers’ compensation coverage under Labor Code section 3352, subdivision (f) are not also exempt from assumption of risk under Labor Code section 2801.
[5893]. The Release
Bear Valley also moved for summary judgment based on a release signed by Vine when she received her employee season pass. The operative terms of the release were as follows:
“I understand and am aware that skiing is a HAZARDOUS ACTIVITY involving INHERENT AND OTHER RISKS of injury to any and all parts of my body. I further understand that injuries in the sport are a COMMON AND ORDINARY OCCURRENCE, and I freely ACCEPT AND ASSUME ALL RISKS OF INJURY OR DEATH that might be associated with my participation in this sport.
“. . . To the fullest extent allowed by law, I agree to RELEASE FROM LIABILITY, and to INDEMNIFY AND HOLD HARMLESS Bear Valley Mountain Resort. . . from any and all liability on account of, or in any way resulting from, personal injuries, death or property damage, even if caused by NEGLIGENCE, in any way connected with my participation in this sport. I further AGREE NOT TO MAKE A CLAIM OR SUE FOR INJURIES OR DAMAGES in any way connected with my participation in this sport, even if caused by NEGLIGENCE.”
The court denied Bear Valley’s summary judgment motion, finding the terms of the release ambiguous in that “skiing” does not necessarily include snowboarding. The court also ruled that a reference in the pass to the 1999-2000 “season” did not unambiguously apply to Vine’s injuries, evidently on the theory that the employee party did not occur during the “season” because it took place after the slopes had been closed to the public until the next season.
Bear Valley notes the court also excluded any reference to the release during trial. It does not challenge the propriety of that ruling, however, claiming only that the court erred by failing to grant summary judgment. Vine protests that Bear Valley is improperly seeking a more favorable standard of review by limiting its appellate claims in this fashion. (See Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360-361 [114 Cal.Rptr.2d 265] [contrasting deferential review of trial court’s assessment of extrinsic evidence to resolve ambiguity in release with independent review of summary judgment ruling].) Vine’s point is well taken. Review of a ruling denying summary judgment is inappropriate when “the same questions raised by the motion are then decided adversely to the unsuccessful moving party after a trial on the merits which is itself free from prejudicial error.” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836 [16 Cal.Rptr.2d 38]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, 1 2:242.2, [590]p. 2-107.) Here, while we conclude the trial court did err in another regard, Bear Valley may not pass over the court’s ruling on the release at trial in order to get another bite at the summary judgment apple.
In any event, the court’s denial of summary judgment was plainly correct. The release was ambiguous, at least as to whether the term “skiing” included snowboarding. Bear Valley presented no extrinsic evidence to resolve the ambiguity. It merely noted Vine’s deposition testimony that she understood she had executed a release in exchange for her season pass. This evidence shed no light on the meaning of the terms in the release. Bear Valley argued below, as it does in this court, that “skiing” includes snowboarding as a matter of law under Campbell v. Derylo (1999) 75 Cal.App.4th 823 [89 Cal.Rptr.2d 519]. The Campbell court concluded a jury might find that a snowboarder’s conduct violated a county ordinance providing safety regulations for skiers. (Id. at p. 829.) However, the pertinent question in this case is how a reasonable person in Vine’s position would have believed Bear Valley understood the scope of the release. (Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 361.) Campbell does not answer that question.2
4. Primary Assumption of Risk
A third ground on which Bear Valley sought summary judgment was primary assumption of risk. Bear Valley contended it owed no duty to protect Vine against risks of injury inherent in the sport of snowboard jumping. Vine responded that she did not assume the risk of a defective jump. She presented a declaration from an accident reconstruction expert opining that the jump’s design was defective and subjected those using it to an extreme risk of serious injury. The court decided the primary assumption of risk doctrine did not apply, because “the sport of snowboarding does not inherently require jumps which are designed in such a way as to create an extreme risk of injury. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184 [43 Cal.Rptr.2d 392].)”
Bear Valley contends the court erred by denying summary judgment. It also claims the court improperly denied a proposed jury instruction on [591]primary assumption of risk. Vine asserts the summary judgment ruling is not appealable. She argues the court properly refused to instruct the jury on primary assumption of risk, because the defense presents only legal issues for the court to determine.
Again, we deem it inappropriate to review the summary judgment ruling. There are circumstances in which a denial of summary judgment is reviewable after a trial on the merits. (Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 836.) However, in this case a great deal more evidence was presented at trial than in the summary judgment proceedings on the critical question of whether the jump on which Vine was injured was defectively constructed. The interests of justice would not be served if we ignored the fully developed record and conducted an independent review of the summary judgment papers. (Id. at pp. 835-836.)
In any event, as with the question of the release (see pt. 3, ante), the court’s denial of summary judgment on primary assumption of risk was clearly correct. As the moving defendant, Bear Valley had the burden of showing that one or more elements of Vine’s cause of action could not be established. (Code Civ. Proc., § 437c, subd. (o)(2); Merrill v. Navegar (2001) 26 Cal.4th 465, 476-477 [110 Cal.Rptr.2d 370, 28 P.3d 116].) Primary assumption of risk operates to foreclose any duty owed by the defendant to the plaintiff, and thus is a defense that is generally “amenable to resolution by summary judgment.” (Knight, supra, 3 Cal.4th at p. 313; Kahn, supra, 31 Cal.4th at p. 1004.)
However, “[although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in [a] sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, supra, 3 Cal.4th at p. 315-316; Kahn, supra, 31 Cal.4th at p. 1004.) Vine’s complaint was premised on the allegation that Bear Valley’s jump “constituted a dangerous and defective condition, likely to cause persons using the jump to injure themselves, and increasing the risks to snowboarders such as plaintiff over and above those inherent in the sport.”
Therefore, in order to establish it owed no duty to Vine because she had assumed the risk of injury, Bear Valley had to show either that its jump did not increase the inherent risks of snowboard jumping, or that whatever defects the jump may have had were included in those risks. It attempted neither showing in its moving papers, contending merely that falling is an inherent risk of the sport. This was not sufficient to require Vine to undertake the burden of raising a triable issue of fact as to whether the jump posed risks beyond those inherent in snowboard jumping. (Code Civ. Proc., § 437c, [592]subd. (o)(2); see Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at pp. 364—366 [while falling is inherent risk of skiing, whether artificial jumps built by resort increased inherent risk and created duty to warn was question for jury].)3
We discuss Bear Valley’s proposed jury instruction on primary assumption of risk below, in connection with secondary assumption of risk. Primary assumption of risk per se is not a proper subject for jury instruction. Our Supreme Court has made it clear that whether primary assumption of risk negates a defendant’s duty to protect the plaintiff from a particular risk is a legal determination to be made by the court, not the jury. (Knight, supra, 3 Cal.4th 296, 313; Kahn, supra, 31 Cal.4th 990, 1003-1004.) Thus, Bear Valley might properly have raised the issue at trial by way of a motion for directed verdict (which would have resulted in a ruling we could properly review). Nevertheless, in certain circumstances primary and secondary assumption of risk are intertwined and instruction is required so the jury can properly determine whether the defendant did, in fact, increase the risks inherent in a hazardous sport so that secondary assumption of risk should be considered.
5. Secondary Assumption of Risk
In Kahn, our Supreme Court summarized Knight’s reconciliation of the doctrines of assumption of risk and comparative fault as follows: “We observed that the term ‘assumption of risk’ had been used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). ([Knight, supra, 3 Cal.4th] at pp. 303-304, 308.) In the latter class of cases, we concluded, the issue could be resolved by applying the doctrine of comparative fault, and the plaintiff’s decision to face the risk would not [593]operate as a complete bar to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence, (id. at pp. 308, 310-311.)” (Kahn, supra, 31 Cal.4th at p. 1003.)
Cases like this one, where the plaintiff contends the defendant breached the duty not to increase the risks inherent in a hazardous sporting activity, present both aspects of the assumption of risk doctrine. If the plaintiff fails to show any increase in the inherent risks, or if the trial court determines that the only risks encountered were inherent in the sport, the defendant prevails based on primary assumption of risk. If the jury, properly instructed on the scope of the defendant’s duty, determines the defendant did increase the inherent risk, it then considers the plaintiff’s claim based on secondary assumption of risk as an aspect of the plaintiff’s comparative fault. (American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th 30, 36-37; Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at p. 193.) “This second determination of duty, however, still hinges upon the trial court’s determination of the question of duty in the first instance, by defining the risks inherent in the sport at issue.” (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1633 [53 Cal.Rptr.2d 657].)4
The duty aspect of the secondary assumption of risk doctrine was actually addressed by Bear Valley’s proposed jury instmction on primary assumption of risk.5 The secondary assumption of risk instmction offered by Bear Valley addressed the risk of injury Vine assumed when she attempted [594]the jump.* [6] We agree with Bear Valley that the court erred by rejecting these instructions, which explained principles crucial to the jury’s deliberations. “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct on specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
Vine claims the court’s instruction on contributory negligence with BAJI No. 3.50 sufficiently informed the jury regarding secondary assumption of risk.7 She argues that because the doctrine “is merged into the comparative fault scheme” (Knight, supra, 3 Cal.4th at p. 315), it would be duplicative and potentially confusing to instruct the jury on both concepts. A review of the discussion in Knight demonstrates the inadequacy of this general comparative negligence instruction in the secondary assumption of risk context. A central part of Knight’s reasoning was that a plaintiff’s voluntary assumption of the risks of a dangerous sport “functions as a form of contributory negligence,” as the Kahn court put it, even if the plaintiff’s decision to participate was not “unreasonable” and thus not, strictly speaking, a negligent act. (Kahn, supra, 31 Cal.4th at p. 1003; Knight, supra, 3 Cal.4th at p. 314.) Knight addressed this point in response to the concern of an amicus curiae that a defendant whose breach of duty played only a minor role in the [595]plaintiff’s injury might nevertheless face a damage award undiminished by the plaintiff’s comparative fault, if the jury decided the plaintiff’s choice to engage in a dangerous activity was voluntary but also reasonable:
“Although we agree with the general thesis of amicus curiae’s argument that persons generally should bear personal responsibility for their own actions, the suggestion that a duty approach to the doctrine of assumption of risk is inconsistent with this thesis rests on a mistaken premise. Past California cases have made it clear that the ‘comparative fault’ doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury Cwhether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an ‘equitable apportionment or allocation of loss.’ [Citations.]
“Accordingly, contrary to amicus curiae’s assumption, we believe that under California’s comparative fault doctrine, a jury in a ‘secondary assumption of risk’ case would be entitled to take into consideration a plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable, in determining whether the plaintiff properly should bear some share of responsibility for the injuries he or she suffered. [Citations.] Thus, in a case in which an injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.” (Knight, supra, 3 Cal.4th at pp. 313-314, italics added; and see Kahn, supra, 31 Cal.4th at p. 1005, fn. 2 [analysis of Knight plurality has been adopted by Supreme Court].)
Therefore, it was not sufficient for the jury to be instmcted that Vine’s recovery should be diminished in proportion to her “negligence.” The court gave the standard negligence instructions from BAJI, quoted in full below,8 [596]which characterized negligence as “something which a reasonably prudent person would not do,” and “the failure to use ordinary or reasonable care . . . under circumstances similar to those shown by the evidence.” The circumstances shown by the evidence were that many Bear Valley employees took the jump at the party. The jury saw a videotape of about 30 of Vine’s fellow employees safely completing the jump. There was no suggestion that all these people acted negligently when they voluntarily chose to face the risks posed by the jump. As we explain below in our analysis of the prejudice caused by the court’s instructional error, it was the manner in which Vine attempted the jump that the jury was likely to consider negligent, not her willingness to take the risk.
The instructions were equally erroneous regarding the duty of care owed by Bear Valley. The court directed the jury to evaluate Bear Valley’s conduct by the standard of “ordinary or reasonable care,” under which a party has acted negligently if a “person of ordinary prudence . . . would have foreseen or anticipated that someone might have been injured” as a result of the party’s “action or inaction.” (BAJI Nos. 3.10 and 3.11; see fn. 8, ante.) The jury was told to apply this ordinary standard of care even if Bear Valley’s conduct conformed to the standards customary in the ski resort industry. (BAJI No. 3.16; see fn. 8, ante.) Nowhere was the jury informed that Bear Valley owed Vine no duty to protect her from the risks inherent in snowboard jumping. Indeed, the instructions suggested just the opposite, since it was clearly foreseeable that the inherent risks of riding a snowboard over the jump built by Bear Valley might result in injury.
The ski resort setting is such an obvious example of assumed risk that Knight used it as an example in discussing the scope of a property owner’s duty:
“[A] property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citation.] In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the [597]sport of skiing, and a ski resort has no duty to eliminate them. [Citation.] In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.
“Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. [Citation.]” (Knight, supra, 3 Cal.4th at pp. 315-316.)9
The duty to safely maintain towropes is not an apt comparison to Bear Valley’s role in shaping the mound of snow that Vine and others jumped over at the employee party. The jump, unlike towropes, was an essential component of the sporting activity itself. Knight pointed out that “the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant’s role in, or relationship to, the sport.” (Knight, supra, 3 Cal.4th at p. 317.) Knight proceeded to approve cases analyzing “the duty of the owner of a ballpark or ski resort, in the process defining the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.” (Ibid., italics added.)
This passage in Knight provides the appropriate standard of care by which Bear Valley’s liability should have been determined.10 The jury should have considered not whether an ordinarily prudent person in Bear Valley’s position [598]would have anticipated that someone might be injured on the jump, but what steps Bear Valley should reasonably have taken to minimize the risks without altering the nature of the sport of snowboard jumping. This standard has been approved in a similar case involving injuries sustained by a bicyclist who fell while riding over a man-made jump in a “moto park.” (Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at pp. 187, 192-193; see also Morgan v. Fuji Country USA, Inc., (1995), 34 Cal.App.4th 127, 134 [40 Cal.Rptr.2d 249] [golf course operator owed duty to minimize risks of being struck by balls without altering nature of sport].) Bear Valley’s proposed primary assumption of risk instruction properly explained its obligation not to increase the inherent risks of snowboard jumping, while preserving the participants’ opportunity to vigorously engage in the sport. (See fn. 5, ante.) The court erred by failing to give the assumption of risk instructions offered by Bear Valley.11
The dissent acknowledges it would have been “advisable” to give the primary assumption of risk instruction proposed by Bear Valley, but contends the error is harmless in light of the evidence and the arguments of counsel. As to Bear Valley’s proposed instruction on secondary assumption of risk, however, the dissent argues the evidence did not support the instruction because there was no showing Vine was aware of the increased risk posed by the negligent formation of the jump. We agree there was no such showing, but none was required.
A “knowing encounter with a risk of injury caused by defendant’s breach,” as posited in Bear Valley’s proposed instruction based on the language of Knight, does not entail knowledge of the breach and its causative effects, either in law or in logic. If Vine had encountered this jump while snowboarding by herself, decided to try it, and only later learned it was shaped by Bear Valley in a particularly dangerous way, Bear Valley would still have been entitled to raise an assumption of risk defense in a negligence action by Vine. It is the risk that must be appreciated by a plaintiff for the assumption of risk doctrine to come into play, not the defendant’s breach of duty.'
The dissent acknowledges Vine need not have been aware of Bear Valley’s breach, but argues the proposed instruction depended on a showing that she [599]knew the jump posed “more than the normal” risks. The dissent correctly notes that Knight refers to the plaintiff’s knowledge of risks “created” or “imposed” by the defendant’s breach. (Knight, supra, 3 Cal.4th at pp. 310-311, 315.) However, as we read Knight, the plaintiff’s encounter with the risk must be “knowing” only in the general sense that the plaintiff understood the nature of the risk involved. Thus, Vine understood and assumed the risk of injuring herself in a fall on the snow, but she did not assume the risk of landing on a spike concealed in the jump.12 Some elevation of the inherent danger of falling must have been created by Bear Valley’s negligence for Vine to have an actionable claim; however, she did not have to subjectively appreciate the elevated increment of the risk to assume the inherent risks of snowboard jumping.
We recognize that Knight includes in its secondary assumption of risk discussion “see” citations to authorities approving consideration of plaintiffs’ subjective awareness of risk. (Knight, supra, 3 Cal.4th at p. 314, citing Kirk v. Washington State University (1987) 109 Wn.2d 448 [746 P.2d 285, 290-291]; Schwartz, Comparative Negligence, [(1st ed. 1974)], § 9.5, p. 180; and Diamond, Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine (1991) 52 Ohio St. LJ. 717, 748-749.) However, in cases where secondary assumption of risk arises from defendants’ breach of the duty not to increase a sport’s inherent risk, requiring plaintiffs to be specifically aware of the increase would be inconsistent with Knight’s analysis. Plaintiffs could avoid the assumption of risk defense by claiming they were ignorant of the effects of defendants’ negligence, “however minor,” and “voluntary risk takers” would “avoid all responsibility for their own actions.” (Knight, supra, 3 Cal.4th at p. 313.) Indeed, a plaintiff would be most likely not to notice the results of the defendant’s negligence when the increase in the inherent risk was only slight, and the defense would be unavailable where it is most appropriate.
Here, for instance, had the jury decided that Bear Valley increased the inherent risks of the jump by 5 percent, no fault would be allocated to Vine for her assumption of risk unless Bear Valley could prove she perceived the enhanced fraction of the risk (or part of it, at least, according to the dissent). We do not believe this is what Knight intended; in such a case, assumption of risk is an available defense if the plaintiff participated in the sport with knowledge of its inherent risks. Obviously, if a plaintiff is aware of an increased risk created by the defendant, that awareness can be included in [600]the jury’s evaluation of comparative fault. But Knight does not predicate secondary assumption of the risk on such specific subjective considerations.
Knight contemplated a “flexible, commonsense” consideration of comparative fault by the jury, in which “both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport” are weighed by the jury to reach an equitable apportionment of fault. (Knight, supra, 3 Cal.4th at p. 314 [11 Cal.Rptr.2d 2, 834 R2d 696].) Whether (and by how much) it is fair to reduce a plaintiff’s recovery for injuries caused by the defendant’s negligent elevation of the risk, even if the plaintiff was unaware of the increase in the risk, is a question for the trier of fact to decide in light of the particular circumstances of each case. Here, the instructions failed to present this critical question to the jury. Bear Valley’s proposed instruction asking the jury to consider Vine’s “knowing encounter with a risk of injury caused by defendant’s breach” adequately framed the question, and should have been given.13
It is probable the instructional error prejudicially affected the verdict. The “natural and probable effect of the error” on Bear Valley’s “ability to place [its] full case before the jury” was substantial—Bear Valley was effectively deprived of the opportunity to present an assumption of risk defense to the jury. (Soule v. General Motors Corp., supra, 8 Cal.4th 548, 580.) It was not able to ask the jury to factor Vine’s decision to accept the jump’s risks into the determination of comparative fault, and the jury was given a grossly inaccurate yardstick for measuring the scope of Bear Valley’s duty to the employees using the jump. Our Supreme Court has directed us to [601]look at four further factors in evaluating the prejudicial effect of instructional error: (1) the state of the evidence; (2) the effect of other instructions; (3) the effect of counsel’s arguments; and (4) any indications by the jury itself that it was misled. (Id. at pp. 580-581.) Only the first three factors apply in this case.
The evidence certainly supported a finding that Vine assumed a substantial risk. There was no dispute at trial that snowboarding is a very risky sport. Whether the design of the jump magnified the risks was a disputed issue. Bear Valley’s expert on “terrain parks,” who viewed photographs of the jump at issue and the videotape of employees using the jump on the day Vine was injured, testified that the jump was typical of those used around the world, and could not have been designed to exclude the possibility that a jumper would lose “body control.” Nevertheless, Bear Valley was held to a standard of ordinary care, and the jury was not told to weigh Vine’s acceptance of the risks of snowboard jumping when assessing her share of the fault for her injuries. The other instructions, as discussed above, did nothing to cure these problems. Instead, they greatly overstated Bear Valley’s duty and omitted any mention of Vine’s assumption of risk.
We agree with the dissent that the prejudice to Bear Valley on the issue of its duty was mitigated by the way the case was presented. Vine’s counsel did not suggest Bear Valley could be held liable merely because an injury to snowboard jumpers was foreseeable, although the instructions would have permitted such a finding. The evidence and argument was properly aimed at whether the jump was negligently constructed so as to pose risks beyond those normally encountered by snowboarders.
On the other hand, the jury was not informed that Bear Valley had no duty to take steps to reduce the risks inherent in snowboard jumping, or to change the essential nature of the sport. Bear Valley was thus deprived of a powerful avenue of argument. However, we need not decide whether this error alone was prejudicial. Considering it together with the court’s failure to instruct the jury that Vine’s recovery could be diminished by her assumption of risk, we believe it is reasonably probable the jury was actually misled in its apportionment of fault. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 581, fin. 11.)
Vine, and the dissent, contend the jury’s allocation of 54.4 percent of the fault to Vine demonstrated that the jury held her accountable for her decision to participate in a risky sport. A close examination of the closing arguments, and the evidence on which they were based, convinces us otherwise. Vine’s counsel proposed and disputed a number of grounds on which the jury might be tempted to consider Vine contributorily negligent: (1) “simply taking the [602]jump;” (2) taking the jump despite risks she should have understood; (3) taking a jump bigger than any she had tried before; (4) failing to reach the jump’s landing area; and (5) losing her balance when she was airborne. Counsel argued against holding Vine responsible for taking a risky jump by noting that she was a very experienced snowboard jumper, and that many others were taking this particular jump, which was supposed to have been designed for anyone to use safely regardless of its size. He argued against faulting Vine for her technique by contending the jump’s design was to blame for her loss of control.
Bear Valley’s counsel, after referring the jury to the test for negligence provided in BAJI No. 3.11 (whether an ordinarily prudent person in the same situation would have anticipated injury), emphasized that snowboard jumping is a risky activity and Vine deliberately chose to take this jump. He analyzed Vine’s “jumping technique” at length, noting her failure to build enough speed on her approach, her “stiff legged” and backward-leaning posture instead of keeping a low center of gravity while balanced over her board, and her flailing arms as she lost control in the air, causing her to land on her back instead of her feet. Counsel pointed out that none of the other jumpers the jury saw on the videotape had lost control in this manner.
The evidence of Vine’s faulty performance of the jump was undisputed and overwhelming. It came from witnesses for both parties. While the evidence that snowboard jumping is risky was also undisputed, the attempt by Bear Valley’s counsel to direct the jury’s attention to this factor found no support in the instructions. A failure to exercise reasonable care to avoid injury under the circumstances was easily correlated with Vine’s failure, despite her considerable snowboarding experience, to properly execute the fundamental jumping techniques. It was not easily connected to her decision to accept the risks of snowboard jumping, as she had safely done many times before and as many of her peers were doing without injury on the same day and on the same jump.
Even if the jury were inclined to consider the factor of risk in its allocation of fault, the instructions given by the court provided Vine’s counsel with a potent rejoinder. In his rebuttal, he characterized Bear Valley’s argument as “there are some risks here in snowboarding, and because there are risks, we don’t have to be careful.” In his closing comments to the jury, counsel dismissed risk as an irrelevant consideration: “Hey, risk, risk in sport. That’s not the way it goes. That’s not what the jury instructions will tell you. The jury instructions will tell you that if you' could foresee somebody being injured by your screwup, and you could avoid the screwup, that the failure to do so is negligence.”
[603]The instructions, including the court’s admonition to rely on the law as it was stated in the instructions, fully supported counsel’s legally erroneous argument. The argument was improper because it was clear, under Knight, that risk in sport is indeed “the way it goes” in actions to recover for injuries sustained while participating in hazardous recreation. The instructions prevented the jury from considering assumption of risk in an obviously appropriate context. Snowboarding is a classic example of a sport that requires participants to assume considerable risks. It is fundamentally unfair for a snowboarding injury case to go to a jury without any instruction on assumption of risk. We cannot say the court’s instructional error had no effect on the verdict.
DISPOSITION
The judgment is reversed. Bear Valley shall recover its costs on appeal.
Corrigan, Acting P. J., concurred.
In this case, it appears the release signed by Vine was on the same form signed by Bear Valley’s paying customers. It begins, “In consideration for the purchase of a Bear Valley Mountain Resort season pass . . . .”
Should the issue arise again in litigation following remand, we note for the benefit of the parties and the trial court that an easy answer is not necessarily provided by the general rule that ambiguities in a contract are construed against the party who drafted the terms. That maxim applies only when other canons of construction, including consideration of extrinsic evidence of the parties’ intent, fail to resolve the ambiguity. (Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448 [66 Cal.Rptr.2d 487]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 798 [79 Cal.Rptr.2d 273].)
We note also that if the express assumption of risk in the release applies, the implied assumption of risk principles discussed in Knight would not come into play. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1374-1375 [59 Cal.Rptr.2d 813]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012-1013 [54 Cal.Rptr.2d 330].)
Bear Valley refers us to Estate of Harshman v. Jackson Hole Mountain Resort (D.Wyo. 2002) 200 F.Supp.2d 1329, 1342-1346, in which the court determined that the risk of a fatal crash landing by an experienced snowboarder taking a jump in a “terrain park” that had been modified the night before was an inherent risk of snowboard jumping. We note that a similar result was reached in Shukoski v. Indianhead Mountain Resort, Inc. (6th Cir. 1999) 166 F.3d 848, 852-853, holding that a snowboarder who was rendered quadriplegic after falling on a jump in a “terrain garden,” clearly marked as an expert slope, assumed the risk of his injuries. Neither of these opinions, however, considered whether the defendants’ elevation of inherent risks took the case out of the scope of the assumption of risk doctrine as it has developed in California. Both emphasized that the plaintiffs were injured in specially designated parks with warning signs. (Harshman, supra, 200 F.Supp.2d at p. 1344—1345; Shukoski, supra, 166 F.3d at p. 852.)
Whether the defendant has increased the risks inherent in a sport is a question reserved for the court insofar as it involves the legal determination of the scope of the defendant’s duty. The court may consider expert opinion regarding the risks customarily considered “inherent,” though expert opinion is not controlling on the ultimate legal question of duty. (Kahn, supra, 31 Cal.4th at p. 1017; see, e.g., Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 213-214 [105 Cal.Rptr.2d 600] [ski patrol instructor’s assessment of terrain and of students’ ability presented inherent risk, despite criticism from numerous experts].) However, once the court has resolved the issue of what the inherent risks are, whether the defendant in fact increased those risks under the circumstances of a particular case may be a question for the jury. (Kahn, supra, 31 Cal.4th at p. 1018; see, e.g., Campbell v. Deiylo, supra, 75 Cal.App.4th at pp. 829-830 [whether snowboarder increased risks to skier by failing to use retention strap on his snowboard was jury question]; Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317-1318 [79 Cal.Rptr.2d 775] [whether sign post on ski run increased risk to skier was question of fact reserved for trial].)
This proposed instruction stated:
“The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.
“The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to [594]refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury.
“A failure to fulfill such duty is negligence.”
Bear Valley also submitted an alternative version of this instruction, including this statement:
“A finding that defendant’s conduct may have increased the severity of the injury suffered is not a finding that defendant increased the risk of injury beyond that inherent in recreational snowboard jumping.” The parties raise no issue concerning the propriety of the additional statement.
This proposed instruction stated:
“If you find that defendant breached its duty of care to plaintiff, plaintiff’s knowing encounter with a risk of injury caused by defendant’s breach, if any, is to be considered by you in determining the plaintiff’s comparative negligence or fault. A person who is aware of a risk of harm created by a defendant’s breach of duty but fails to avert the harm is comparatively negligent for the injury.
“You should consider all of the surrounding circumstances established by the evidence, including, but not limited to, the plaintiff’s maturity, intelligence, experience and capacity, along with all the other surrounding circumstances as shown by the evidence.”
Again, Bear Valley submitted an alternative instruction with additional material, none of which is material to the issues before us.
This instruction informed the jury:
“Contributory negligence is negligence on the part of a plaintiff which, combining with the negligence of a defendant, contributes as a cause in bringing about the injury.
“Contributory negligence, if any, on the part of the plaintiff does not bar a recovery by the plaintiff against the defendant but the total amount of damages to which the plaintiff would otherwise be entitled must be reduced in proportion to the amount of negligence attributable to the plaintiff.”
“Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under circumstances similar to those shown by the evidence.
“It is the failure to use ordinary or reasonable care.
“Ordinary or reasonable care is that care which persons of ordinary pmdence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.” (BAJI No. 3.10.)
“One test that is helpful in determining whether a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that someone might have been injured by or as a result of his action or inaction. If the answer to that [596]question is ‘yes,’ and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.” (BAJI No. 3.11.)
“The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reasonably prudent person under circumstances similar to those shown by the evidence.” (BAJI No. 3.12.)
“Evidence as to whether a person conformed or did not conform to a custom that had grown up in a given locality or business is relevant and ought to be considered, but is not necessarily controlling on the issue whether that person was negligent. That issue must be determined by the standard of care that I have stated to you.” (BAJI No. 3.16.)
Numerous cases arising from ski resort injuries have considered various aspects of the assumption of risk doctrine. For post-Knight examples beyond those cited in this opinion, see 6 Witkin, Summary of Cal. Law (9th ed., 2003 supp.) Torts, § 1090C, pp. 339-343; see also Annotation, Ski Resort’s Liability for Skier’s Injuries Resulting From Condition of Ski Run or Slope (2004) 55 A.L.R.4Ü1 632 section 4.
The duties of proprietors of sporting venues are distinct from those of coparticipants or instructors, who are not held to have increased the inherent risks of a sport unless they intentionally injure another or engage in reckless conduct outside the range of the sport’s ordinary activities. (Knight, supra, 3 Cal.4th at p. 318 [coparticipants]; see, e.g., Mastro v. Petrick (2001) 93 Cal.App.4th 83, 91 [112 Cal.Rptr.2d 185] [snowboarder colliding with skier held to “reckless” standard]; Kahn, supra, 31 Cal.4th at p. 1011 [instructors]; see Kane v. National Ski Patrol System, Inc., supra, 88 Cal.App.4th at pp. 213-214 [ski patrol instructor held to “reckless” standard]; see generally Morgan v. Fuji Country U.S.A., Inc. (1995) 34 Cal.App.4th 127, 133-134 [40 Cal.Rptr.2d 249].)
Bear Valley also challenges the court’s failure to give a proposed instruction on what Bear Valley terms the “obvious hazard doctrine.” The court properly rejected this instruction, which told the jury Bear Valley had no duty to warn Vine of an obvious hazard. While Vine did include a duty to warn allegation in her complaint, she did not argue that theory of liability to the jury. Furthermore, after Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561], landowners have not been excused from liability flowing from obvious hazards if injury was foreseeable. (See 6 Witkin, Summary of Cal. Law, Torts, supra, § 931, p. 302; id., (2003 supp.) pp. 218-220.)
The fact that Bear Valley was the provider of a venue for sporting activities distinguishes this case from Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 116 [96 Cal.Rptr.2d 394], in which the court held that residential property owners owed no duty to protect a skateboarder from the risk of falling on a pipe located in a planter box.
The dissent accuses Bear Valley of faulting the court for not giving an instruction Bear Valley never proposed. It is true Bear Valley’s proposed instructions did not include a salient qualification—that comparative fault may be assigned for engaging in a risky sport even if the plaintiff did not act unreasonably. While Bear Valley relies on this point for the first time in its appellate brief, it also squarely challenges the court’s failure'to give its proposed instructions. Those instructions correctly reflected principles established in Knight, and adopted Knight’s terminology. While the proposed instructions could have been better tailored to fit the circumstances of this case (we offer an example below), it cannot seriously be disputed that Bear Valley properly preserved its claim of instructional error.
A fuller explanation of the assumption of risk doctrine as it applied in this case might read as follows:
“The defendant had no duty to protect the plaintiff from the risks of injury inherent in the sport of recreational snowboard jumping. An inherent risk is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.
“The defendant did have a duty not to increase the risks of snowboard jumping beyond the level of risk inherent in the sport. If the defendant breached that duty, it was negligent. However, in determining the parties’ comparative fault, you should consider the plaintiff’s voluntary decision to encounter the risks of snowboard jumping. Whether the plaintiff acted reasonably or not in choosing to take those risks, you may reduce her recovery to account for her assumption of risk by whatever amount you find proper in light of all the evidence.”