May 28 2004 A099199
[PDF] [DOC]		 Peart v. Ferro 5/28/04 CA1/3 Detailed case information

Torts primary assumption of risk,Peart v. Ferro

Primary Assumption of Risk Doctrine Applies to Activity At Issue

            In this case, the trial court granted respondents’ motion for summary judgment on the basis of its finding that respondents had met their burden of establishing that appellants’ complaint was completely barred as a matter of law by the defense of primary assumption of risk.  Appellants’ central contention is that the trial court erred in applying the doctrine of primary assumption of risk to this case, because (a) respondents failed to bear their burden of establishing that the doctrine of primary assumption of risk applies to the recreational activity at issue in this case; and (b) in any case, state and federal statutes regulating the operation of personal watercraft such as Sea-Doos have abrogated the common law assumption of risk defense.  We will address each of the two parts of appellants’ contention in turn.

            Under general principles of negligence law, “persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.”  (Knight, supra, 3 Cal.4th at p. 315.)  Nevertheless, in certain cases of injury resulting from participation in a given activity, the doctrine of assumption of risk may operate as a complete bar to recovery “where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”  (Id. at pp. 314-315; see also Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1572 (Whelihan).)

            The term “assumption of risk” has been used in connection with two classes of cases: [1] those in which the issue is whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk); and [2] those in which it has been determined that the defendant breached a duty of care, and the remaining issue is whether the plaintiff chose to face the risk of harm created by the defendant’s breach of duty (secondary assumption of risk).  In the latter class of cases, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence which does not operate as a complete bar to recovery, but may be resolved by applying principles of comparative fault.  In the former class, on the other hand, the plaintiff’s claim is completely barred as a matter of law because of a legal determination that the defendant did not owe any duty to protect the plaintiff from the particular risk of harm involved in the claim.  (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 (Kahn); Knight, supra, 3 Cal.4th at pp. 308-315; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1259-1260 (Distefano).)  In short, the doctrine of primary assumption of risk “embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk.”  (Knight, supra, 3 Cal.4th at pp. 308, 310, 314-315; see also Kahn, supra, 31 Cal.4th at p. 1003.)

            As relevant to this case, the common law doctrine of primary assumption of risk has been used as a complete defense in personal injury lawsuits arising from any particular sports activity that “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.”  (Record v. Reason, supra, 73 Cal.App.4th at p. 482; see also Bjork v. Mason, supra, 77 Cal.App.4th at pp. 550; Whelihan, supra, 110 Cal.App.4th at p. 1572; cf. Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 794 [“primary assumption of risk does not apply to bar the negligence claim of a passenger in a boat simply being used to ride around on a lake”].)  “ ‘The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.’  [Citation.]”  (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1219 (Moser).)  Thus, the doctrine has been applied specifically to sports and sport-related activities involving physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.  (Kahn, supra, 31 Cal.4th at pp. 1004-1005; Ford v. Gouin (1992) 3 Cal.4th 339, 345; Whelihan, supra, 110 Cal.App.4th at p. 1569.)

            As the Supreme Court has emphasized, application of the primary assumption of risk doctrine is “a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim.  [Citation.]”  (Kahn, supra, 31 Cal.4th at p. 1003.)  Whether a given defendant owed a legal duty to protect a plaintiff from a particular risk of harm, or whether instead the primary assumption of risk doctrine is to be applied, is a question of law that “depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.”  (Knight, supra, 3 Cal.4th at p. 313; see also id. at pp. 309, 316-317; Kahn, supra, 31 Cal.4th at pp. 1004-1005.)

            In making this determination, a court looks first at the nature of the sporting activity at issue to determine what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein.  In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport.  On the other hand, defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.  (Kahn, supra, 31 Cal.4th at p. 1004; Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068 (Cheong); Knight, supra, 3 Cal.4th at pp. 313, 315-320.)

            In addition to examining the inherent nature of the sport, a court must consider the relationship of the parties themselves to the sporting activity.  Duties with respect to the same risk may vary depending on what role was played in the sporting activity by a particular defendant, whether that role be as co-participant, passive observer, instructor, coach, owner of the venue in which the sport is played, or supplier of the equipment used in the sport.  (Kahn, supra, 31 Cal.4th at pp. 1004-1006.)  Accordingly, the general duty of due care to avoid injury to others does not apply to co-participants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.  (Cheong, supra, 16 Cal.4th at p. 1068; Distefano, supra, 85 Cal.App.4th at pp. 1259-1261.)[4]

            In the recent case of Whelihan, supra, 110 Cal.App.4th 1566, the court of appeal was presented with the question whether the personal use of jet skis was an active sport to which the primary assumption of risk doctrine was applicable.  Noting that previous cases had determined that the doctrine of primary assumption of risk applied to several similar personal, noncompetitive water sports (Ford v. Gouin, supra, 3 Cal.4th at p. 345 [water skiing]; Record v. Reason, supra, 73 Cal.App.4th at pp. 475, 482 [“tubing” while being pulled by a motor boat]), the court determined that “[a]s a matter of common knowledge, jet skiing is an active sport involving physical skill and challenges that pose a significant risk of injury, particularly when it is done—as it often is—together with other jet skiers in order to add to the exhilaration of the sport by racing, jumping the wakes of the other jet skis or nearby boats, or in other respects making the sporting activity more challenging and entertaining.  [Citations.]  Consequently, it is the type of sporting activity that meets the criteria governing application of the doctrine of primary assumption of risk.”  (Whelihan, supra, 110 Cal.App.4th at p. 1573, footnote omitted.)

            We are not persuaded by appellants’ assertions that Whelihan was wrongly decided.  Contrary to appellants’ assertion, the court of appeal in Whelihan analyzed both the nature of the specific conditions, conduct or risks involved in jet skiing, and the particular role of the defendant in the activity and in relation to the plaintiff.  The Whelihan court observed that—just as in the case of other sports to which it was very similar, particularly when engaged in as a group activity—jet skiing involves certain significant inherent risks and challenges.  The court specifically rejected assertions that the doctrine can be applied only to contestants in competitive events or spectator sports, noting that the Supreme Court has repeatedly found assumption of risk applicable to any active sport, whether competitive or noncompetitive.  (Whelihan, supra, 110 Cal.App.4th at p. 1573, citing Knight, supra, 3 Cal.4th at pp. 320-321 and Ford v. Gouin, supra, 3 Cal.4th at p. 345.)  The Whelihan court also addressed the relationship of the defendant to the plaintiff and to the activity, noting that the parties were co-participants who had both purchased jet skis just two days before the incident, and that the plaintiff “ ‘was a novice jet skier, having a total of only six (6) hours of actual operating time . . . [and] no experience or familiarity with such “thrilling” maneuvers’ ” as those executed by the defendant.  (Id. at pp. 1570-1573.)

            The decision in Whelihan is clearly on point with the case before us.  As set out in the parties’ separate statements of material facts, it is undisputed that the only significant difference between a jet ski and a Sea-Doo is that instead of having to stand up, as one does on a jet ski, a person using a Sea-Doo can sit down on a “motorcycle type” seat.[5]  For our purposes, there is no legally material difference between the jet skis at issue in Whelihan and the Sea-Doos used in this case.  We agree with Whelihan’s analysis of jet skiing as “an active sport involving physical skill and challenges that pose a significant risk of injury to participants in the sport,” a description which applies equally to the recreational activity of riding a Sea-Doo.  (Whelihan, supra, 110 Cal.App.4th at pp. 1569, 1573.)  There is nothing in the record concerning the recreational activity of using Sea-Doos that would distinguish it in any way from other similar activities found by the courts of this state to constitute sports to which the doctrine of primary assumption of risk is applicable.  We conclude that, in the absence of other considerations, the doctrine of primary assumption of risk applies generally to the recreational activity of using a Sea-Doo, just as it does to other similar sports such as water skiing (Ford v. Gouin, supra, 3 Cal.App.4th at p. 345), “tubing” behind a motorboat (Record v. Reason, supra, 73 Cal.App.4th at pp. 475, 482; Bjork v. Mason, supra, 77 Cal.App.4th at p. 550), jet skiing (Whelihan, supra, 110 Cal.App.4th at pp. 1572-1573), snow skiing (Cheong, supra, 16 Cal.4th at p. 1067), “off-roading” with a motorcycle or “dune buggy” (Distefano, supra, 85 Cal.App.4th at pp. 1255, 1259-1265), skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-117), figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1636), river rafting (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 251, 253), and long-distance group bicycle riding (Moser, supra, 105 Cal.App.4th at pp. 1218-1223).

            Appellants contend that Whelihan is distinguishable from this case because the roles and relationships of the parties to this incident—Ferro, Jason and Peart—differed in significant respects from those of the individuals before the court in Whelihan.  Specifically, they assert that, unlike Whelihan, this case involves two minors, one of whom (respondent Jason) was a 13-year old novice operating a Sea-Doo for the first time while respondent Ferro sat behind him to supervise.  We conclude that, to the extent they exist, the factual distinctions cited by appellants do not affect the applicability of the doctrine of primary assumption of risk in this case.

            The ages of the parties in Whelihan are in fact never mentioned.  On the other hand, the court did note that the plaintiff was a “ ‘novice’ ” jet skier.  (Whelihan, supra, 110 Cal.App.4th at p. 1573.)  Other cases involving comparably youth-oriented sports have either failed to mention the age of the participants at all (Calhoon v. Lewis, supra, 81 Cal.App.4th at pp. 110-111 [skateboarding]; Record v. Reason, supra, 73 Cal.App.4th at pp. 474-478, 482 [“tubing” while being pulled by a motor boat]), or essentially treated the ages of the co-participants as irrelevant (Bjork v. Mason, supra, 77 Cal.App.4th at pp. 548-552 [same].)  Appellants have cited no case law holding that the applicability of the doctrine of primary assumption of risk to a sporting injury turns on the age of the participants.[6]

            Neither does the fact Ferro was riding on the same Sea-Doo as Jason in order to supervise the minor’s operation of the watercraft affect the applicability of the assumption of risk doctrine to this case.  The evidence shows that despite his supervisory role, Ferro was also a co-participant in the activity with Peart and Jason.  (Cf. Bjork v. Mason, supra, 77 Cal.App.4th at pp. 548-552 [adult defendant drove motor boat for five “tubing” minors aged 11 to 15; despite his substantial control of the water sport, adult was a co-participant, and his actions in driving the boat, even if negligent, were protected by assumption of risk doctrine].)  Unlike the defendant swim coach in Kahn, Ferro was neither a coach nor a sports instructor.  (Kahn, supra, 31 Cal.4th at pp. 997, 1004-1006.)  Even if he could be construed as such—a possibility that, on this record, we reject—there would still be no basis for imposing liability on him in the absence of factual allegations and evidence showing that Ferro had acted recklessly or intentionally in such a way as to increase the risk of harm beyond those already inherent in the sport.  (Id. at pp. 1007-1011; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 532 [judo instructor’s conduct was part of the inherent risk of the sport, and instructor did nothing to increase risk].)[7]

            Here, appellants failed to allege recklessness in their complaint.  Neither have they adduced any specific evidence of intentional or reckless actions on the part of Ferro—or any other respondent—that actually increased the risks inherent in operating a Sea-Doo sufficient to demonstrate a triable issue of material fact as to the applicability of the primary assumption of risk doctrine to this case.  Nothing in the record suggests any recklessness on Ferro’s part, or that he did anything so outside the range of the ordinary activity of the sport as to increase the inherent risks to Peart of operating a Sea-Doo.  To the contrary, the undisputed evidence shows that Ferro’s actions in supervising Jason were prudent and well within the boundaries of normal Sea-Doo riding conduct.  The record shows Ferro adequately explained the basics of operating a Sea-Doo to both minors, required them to wear life jackets, and accompanied them when they went out.  Jason and Ferro then simply drove their Sea-Doo in a straight line and at a moderate rate of speed without acceleration.  It was in fact appellant Peart who engaged in the riskier activities of accelerating, executing turns, and cutting back and forth across the wake of respondents’ Sea-Doo.  Ferro did not encourage either Jason or Peart to take risks beyond their experience or ability.  (Record v. Reason, supra, 73 Cal.App.4th at pp. 484-485 [even assuming driver of motor boat for “tubing” participants was speeding and making unnecessarily sharp turns, plaintiff failed to demonstrate any recklessness increasing the risks inherent in the sport]; cf. Kahn, supra, 31 Cal.4th at p. 1013, fn. 4 [unnecessary for plaintiff to allege defendant sports coach was reckless “because she adequately alleged facts and produced evidence sufficient to support such a conclusion”].)

            Contrary to the argument in appellants’ letter brief, the circumstances of this case are utterly unlike those addressed by the Supreme Court in Kahn, supra.  There, the record showed that the defendant swimming coach not only encouraged the novice plaintiff to take extraordinary risks beyond her ability, but actually threatened to drop her from the team if she failed to execute a dangerous dive for which he knew she was completely unprepared and of which “she had expressed a mortal fear,” and that he had in fact previously promised she would not be required to undertake.  (Kahn, supra, 31 Cal.4th at pp. 998-1000, 1011-1013, 1015.)  It was this arguably intentional and reckless behavior that the Kahn court concluded took the case outside the range of ordinary risk inherent in the sport at issue, making the doctrine of primary assumption of risk inapplicable.  Nothing in the record of this case approaches the degree of intentionally reckless behavior at issue in Kahn.[8]

            In sum, we conclude that the trial court did not err in finding that the recreational Sea-Doo activity of the parties in this case constituted a sport as a matter of law, thereby making the defensive doctrine of primary assumption of risk applicable to respondents.