*1 Dist., Div. Three. May First 2004.] A099199. [No. etc., al., PEART, Minor, et Plaintiffs Appellants,
ADAM al., FERRO, E. et Defendants and Respondents. PAUL *5 Counsel Firm, Melodía; Melodía, Echeverría, V. Salter Law & Paul Kelly
Walkup, Salter; HI and Appellants. E. for Plaintiffs Bergesen T. W. B. Finkelstein, Anderlini, Emerick; Smoot Anderlini, Emerick & & Finkelstein for Defendants Respondents. and Merrill G. Emerick Opinion
McGUINESS, P. J.
the recreational
whether
case raises the questions
This
of the
for purposes
constitutes a sport
watercraft
Sea-Doo personal
use
risk,
Court
as set out
our Supreme
doctrine of primary
v. Jewett
Knight
(1992)
Tracy (Peart), and minor Adam Peart and through his mother and Peart, ad guardian litem from a Tracy against final entered appeal judgment Ferro, them and in (Ferro), favor Paul E. Ferro Julie the Ferro respondents Trust (Jason), and minor Jason C. Family through guardian his ad litem Kathryn Magruder, upon grant motion for respondents’ summary judgment. (1) contend that: Appellants doctrine of primary assumption case; risk is to the water inapplicable (2) issue that, failed to their burden of due respondents carry to the nature establishing it, and the no care parties’ relationship they owed state and appellants; federal statutes governing Harbors and personal watercraft—specifically, Code sections Navigation 655.7, (a), subdivision and 658.51—are inconsistent with supersede common law doctrine of of risk as to the applied activities at issue in this case. contentions are at Appellants’ odds with record and case authority contrary. We conclude that the recreational use of the Sea-Doo is a to which the sport activity of risk doctrine applicable, irrespective statutes cited by We therefore appellants. affirm. Background
Factual and Procedural The accident at issue in this case involved the use of two Sea-Doo watercraft. A Sea-Doo is similar to a ski in its jet only operation, differing that it is with a seat equipped similar that of a motorcycle which upon Ferro, operator generally sits rather than stands. owned a model Respondent Sea-Doo; mother, Ferro, XP his Julie respondent owned model GTI vehicle, Sea-Doo. The model XP awas had two-person approximately and could to60 65 miles The horsepower, go hour. model GTI was per larger, *6 could seat three and had a people, smaller engine 90 horsepower could go 50 to 55 miles hour. The Ferros the two at their per kept Sea-Doos vacation residence Clear Lake in Lake Ferro himself had County. “[q]uite instructed in how to frequently” guests the Sea-Doos. operate indicated, statutory Unless otherwise all further are Harbors references Navigation Code. Jason, cousin, were Peart and his July respondent
On appellant time, At Peart and Jason were Clear residence. Ferro’s Lake visiting old, he had never although Peart told Ferro that and 13 years respectively. before, used skis jet Sea-Doo he had stand-up a sit-down operated previously himself, kind of water- had with that therefore by experience before, and had a sit-down Sea-Doo Jason told Ferro he had ridden on craft. Ferro did not ask Jason or Cub Scouts. boating through Boy taken a class by if had a Sea-Doo himself. operated he ever When Jason asked his mother and Jason wanted to ride Sea-Doos. Peart Jason, could, “They to Ferro said: According if she told him to ask Ferro. he on, on.” He fun not to fool around are not are for to have just toys; they ride, to to them how boys explained operate that the two could agreed bracelet, on a key Ferro told Peart to wear things, Sea-Doos. other Among Sea-Doo, also make turns. He told to start the how to how to use the key the boys Aside from always jackets. telling Peart and Jason to wear safety 100 feet from the extending zone approximately about five-miles-per-hour travel they did at which should dock to the Ferro not discuss buoys, speed follow, lake, to out. long stay on to or how route had be at least 16 order years age knew that an individual to Ferro alone, and older were only a Sea-Doo and minors years legally operate an adult. Conse- when Sea-Doo operate accompanied permitted However, the two Sea-Doos. Peart one of he allowed quently, operate one, to drive the other Ferro said to the dock as though when Jason went alone,” him. “[o]h, accompany can’t drive volunteered you sorry, Ferro, all life vests. wearing Peart and Jason were from the dock on one 3:00 Peart p.m., departed
At approximately five miles hour up under going per Sea-Doos. Ferro observed Peart was minute, and Jason left the dock Within Ferro until he reached the buoys. At Sea-Doo, behind him as passenger. with Jason and Ferro driving the other first, they Peart had taken. Once same direction that Jason followed the zone, Jason accelerated to ap- of the five-miles-per-hour the limits passed 35 miles hour. per proximately lake, while, accelerating and around the Peart drove his Sea-Doo
For maintained a straight Ferro turns. Jason and making simply Respondents while, and forth to cut back began After a Peart turning. course without Ferro, less than coming driven Jason and the wake of the Sea-Doo across close,” Ferro it little “cutting that Peart was Feeling feet behind them. from them. Peart a little further” to Peart off signal tried “push *7 and Jason. and Ferro alongside his about 200 feet away maneuvered Sea-Doo 30 miles Then, per Ferro maintained speed approximately Jason and hour, Peart accelerated to hour 45 to 50 miles and approximately per pulled them, in front of 200 feet directly again away. about Ferro saw Peart start turn, make a first and then complete moving veering right sharply the left and across their Peart directly “sort behind path. disappeared [a] wall of water” 180-degree caused turn. When Peart almost reappeared thereafter, he was in front of them and immediately directly only 75 feet later, Ferro told Jason to away. Less than two seconds the Sea-Doo “[t]um.” they riding were collided with Peart’s Sea-Doo.
In he testimony, Peart said had decided to make a U-turn deposition go and back turn, to the dock. he slowed As down and started to make his Sea-Doo he was stalled or “shut Peart operating off.” tried unsuccessfully knew, restart the engine. The next he thing he was waking up hospital. accident, When the came to police Ferro them investigate told that just accident, before the he had grabbed handlebars of the Sea-Doo and tried turn Jason it to avoid help colliding with Peart. In Ferro deposition, that “the truth was that I didn’t acknowledged do and couldn’t probably have done it.” Ferro testified that he made this false statement because he was Jason, to be trying protective who was at the and time very distraught himself for the blaming accident. 14, 2001,
On March filed their complaint against respondents Ferro, Ferro, Trust, 20,” Julie the Ferro Family and “DOES through that Peart had been alleging and seriously injured, and had permanently incurred substantial and and costs for medical care ongoing and expenses treatment, and direct result of the legal carelessness and negligence” “[a]s “and each of The did respondents them.” not cite any complaint provision Code, of the Harbors and made Navigation no reference to duty, any statutory and did not action allege cause of based thereon. Neither did the make complaint reference to or allegation of recklessness intentional- ity any of part respondents.2 pertinent part, allegations the key appellants’ complaint follows: all are as “4. At mentioned,
times [respondents] Family herein Julie Ferro and the Ferro Trust were the owners of a bearing certain brand [personal registration 1997 Bombardier PWC California watercraft] number and [respondent] operating supervising CF8975PD Paul Ferro was and said the permission PWC with said [respondents]. consent of mentioned, “5. At all times herein [respondent] Paul Ferro was the owner of a certain CF8963PD, bearing Bombardier brand PWC California license Adam [appellant] Peart [Ferro], said operating permission PWC with the and consent of July “6. On p.m. County or about or about 3:00 at Clear Lake in the of Lake California, them, County, [respondents], negligent State and each of were in and about their entrustment, ownership, operation, supervision, maintenance control said 1997 directly bearing proximately Bombardier PWC California license CF8975PD so .as cause it [appellant] to strike collide with the Bombardier PWC Adam Peart was which operating. there and then *8 2001, Ferro, 10, Family Julie Ferro and the Ferro
On May respondents answer, the affirmative defense things an other asserting among Trust filed on an identical answer of risk. Jason filed Respondent of assumption 2002, 10, 2001, all the Doe On being January after served as 1. October that the ground on the filed a motion for summary judgment respondents a to all of acted as bar complete risk affirmative defense 20, 2002, filed claims. On February opposition appellants’ appellants a things tiding other that for summary arguing among motion judgment, subject not to the doctrine venue was an Sea-Doo public risk; summary judgment were not entitled to respondents had violated as to whether they there were factual issues because disputed duties; there material statutory disputed were applicable several allegedly to an Ferro was subject to whether respondent issues of fact with regard Peart because the risk of harm additional increase appellant Sea-Doo; and Jason in the operation he was minor instructing aby higher had been “supplant[ed]” of risk doctrine enactment standard of care created legislative and independent 655.3, (a), 655.7 and 658.5. subdivision sections Appellants was heard on March 2002. The motion summaryjudgment for to the alleged intent legislative respect did not offer evidence of judgment. for summary cited in their to motion duties statutory opposition 29, 2002, granting respondents’ the trial court entered an order On March showing the basis of evidence undisputed for summary judgment, motion of law the and as a matter entirety action was barred its that appellants’ (1999) 73 of risk. Record v. Reason Citing of primary assumption doctrine (2000) and v. Mason Bjork Cal.Rptr.2d [86 49], found that Sea-Doo the trial court doctrine, it an of that because was the meaning within riding “sport” “for enjoyment inner water-skiing tubing akin to performed skill, and thrill, as well as elements of exertion physical requires [that] court The trial injury.” a challenge containing potential involves environment, such that existence of obstacles found specifically “[t]he water, be and watercraft to passed, to be crossed other wakes spraying using Peart “was not that sport,” of the thrill part [were] had Noting as means of merely transportation.” sea-doo reckless, behavior was intentional that [respondents’] “offered no evidence those inherent in sport,” over and above the risks to or increased [Peart] are sea-doo riders such between the trial court concluded “[collisions negligence [respondents], legal of the carelessness “7. a direct and result As them, informed injuries. [Appellant] . . . . received . . each of Adam Peart [appellant] injuries will that certain of said alleges information belief upon such believes and therefore nature, being this time unknown injuries permanent extent of said permanent [appellant].” *9 risk.” Because of the nature of the the doctrine sporting activity, assump- tion of risk was immaterial making factual issue as whether applicable, any were careless or or respondents negligent operating supervising trial court cited Sea-Doo. The also found that statutes by manifested no intent to doctrine of existing supersede primary activities such as those at issue. applied sporting 30, 2002, On the trial court entered in favor April judgment summary This filed respondents against timely appellants. appeal properly from of entry notice of judgment.
Standard of Review Any for may move action party summary judgment any merit, proceeding by action has no or there no contending defense Proc., 437c, to the (Code action. Civ. (a).) subd. Code Civil Procedure § 437c, section (c), subdivision a trial court to requires grant summary judg submitted, ment all the if and affidavits with “all papers together inferences reasonably deducible from the evidence” and uncontradicted other infer by evidence, ences or show that “there is no triable issue as to material fact and that the is entitled to a moving party (Code as a matter of law.” judgment Proc., 437c, Civ. Songster v. Paetkau (c); 151, subd. (1998) 68 § Cal.App.4th Witkin, 66]; Cal. Cal.Rptr.2d (4th 1997) Procedure ed. [80 Proceedings Trial, § 217, Without 629.)
A defendant for moving may meet the burden of summary judgment that a cause of showing (a) action has no merit an essential negating action; (b) element that cause of defense to that establishing complete action; (c) cause of the absence demonstrating evidence support burden, Once case. plaintiff’s moving defendant has met this initial the burden show the existence a triable issue of one plaintiff shifts or more material with (Code facts to that cause of action or defense. respect Proc., 437c, Rubenstein v. Rubenstein Civ. subd. § (p)(2); Paetkau, 707]; Sangster Cal.App.4th Cal.Rptr.2d [97 161-162.) A plaintiff summary opposing judgment may alone, motion, on the but must file rely pleadings opposition affidavits setting forth facts triable issue of specific demonstrating Proc., (Code material fact as to Civ. exists the cause of action or defense. v. McFerren 437c, (1995) 35 Villa subd. (p); § Witkin, Procedure, 613-614.)3 719]; Cal. supra, § decision to grant deny we review the trial court’s “On appeal, novo, de the basis an examination motion summary judgment effect determination of its the trial court and our independent evidence before court’s stated are not bound the' trial as a matter of law. We [Citations.] Instead, without summary judgment or rationale. we review reasons of law. trial determination of deference to the court’s questions [Citations.] *10 court, the and were before trial consider those facts which only We may Thus, time on made for the first appeal. new factual disregard allegations and to the trial argued factually fully developed unless were they presented, court, of which could create ‘triable issues theoretically theories potential v. (Sangster or considered material fact’ not be raised may appeal.” Rubenstein, Paetkau, 163; see also Rubenstein v. 68 Cal.App.4th p. 1143; Witkin, Procedure, Cal. § 646-647.) Activity Primary Assumption Applies of Risk Doctrine to Issue case, summary motion for respondents’ In the trial court granted this of met their burden that had finding respondents on the basis of its judgment of a matter barred as that establishing appellants’ complaint completely central of risk. Appellants’ law the defense of primary assumption by doctrine of primary the court erred in the contention is that trial applying case, their (a) failed to bear to this because respondents of risk assumption risk the doctrine of of establishing applies burden of that case, case; and (b) and state the at issue to recreational as of watercraft such the regulating federal statutes We the law of risk defense. assumption common abrogated Sea-Doos in turn. two of contention address each of the parts appellants’ will law, use have a to duty negligence “persons Under of general principles others, their careless be held liable if may to to injury due care avoid (2) summary adjudication: ... summary judgment Q] HI] of motions for purposes “For showing that a A defendant of action has or burden of cause or has met his her cross-defendant action, even if not of the cause of party has that one or more elements if that shown no merit established, that of complete cause or that there is a defense pleaded, cannot be separately burden, the the shifts to has met that burden the defendant or cross-defendant action. Once exists one more material facts to show that triable issue of cross-complainant plaintiff rely may cross-complainant plaintiff thereto. The cause action or a defense of of a triable material pleadings show that issue allegations or denials of its upon the mere but, instead, showing of material facts that a triable issue specific forth the shall set fact exists Proc., 437c, (Code (p).) subd. thereto.” Civ. § cause action or a defense as to that of fact exists (Knight, supra, 315.) conduct another Cal.4th at injures person.” Nevertheless, in certain in a resulting cases of from injury given participation the doctrine of as a bar activity, may operate complete “where, virtue the by nature recovery parties’ relationship legal the defendant owes no activity, duty protect (Id. from plaintiff risk of harm that particular caused injury.” 314-315; Whelihan see also Espinoza (Whelihan).) The term of risk” has been used “assumption in connection two classes of cases: those in which issue is whether defendant actually owed the risk); of care plaintiff duty (primary and those in care, determined which it has been defendant breached a remaining issue whether chose face the risk of harm plaintiff created defendant’s risk). breach duty (secondary assumption cases, the latter class of knowing plaintiff’s voluntary acceptance the risk functions as a form contributory which does not negligence as a operate bar to but resolved complete recovery, may applying *11 class, hand, In the principles comparative fault. former on the other claim is barred plaintiff’s as a matter of a completely of law because legal determination that did not owe to duty protect plaintiff defendant from the (Kahn risk v. East Side particular of harm involved in the claim. High Union School Dist. 990, 103, 31 (2003) Cal.4th 1003 75 Cal.Rptr.3d [4 (Kahn); 3 P.3d Knight, 308-315; supra, v. Cal.4th at pp. 30] Distefano Forester (2001) 1249, 85 Cal.App.4th Cal.Rptr.2d [102 813] short, (Distefano).) In doctrine of of risk “embodies a primary assumption conclusion legal that there is ‘no duty’ on the of the defendant to part protect 3 308, 310, from a (Knight, supra, Cal.4th plaintiff risk.” at particular pp. Kahn, 314—315; see also supra, 31 at 1003.) Cal.4th p. case,
As relevant to this common law doctrine primary of risk has assumption been used as a defense in complete injury lawsuits from arising that “is done for particular sports activity enjoy thrill, skill, ment or exertion as well requires as elements of physical Reason, a (Record v. involves a challenge risk of containing potential injury.” Mason, 482; supra, 73 v. Bjork at see supra, also 77 Cal.App.4th p. Whelihan, 550; 1572; at 110 supra, Cal.App.4th pp. cf. Cal.App.4th p. 792, Shannon Rhodes v. 794 Cal.App.4th Cal.Rptr.2d [112 217] not [“primary risk does to bar the claim of a assumption negligence apply “ in a lake”].) boat used ride on a passenger being to around ‘The simply overriding consideration in the of risk is to application avoid a imposing duty might which chill vigorous participation alter its fundamental nature.’ implicated activity thereby [Citation.]” (Moser (2003) 105 Cal.Rptr.2d 1219 [130 Ratinoff Thus, (Moser).) the doctrine has been to applied specifically sports signifi- challenges posing skill and involving physical activities
sport-related activities, as to which the in such risk of to injury participants cant in the sporting a defense would chill vigorous participation absence such a whole. on the nature of the sport and have a deleterious effect activity (1992) 3 Cal.4th (Kahn, Ford v. Gouin 1004-1005; supra, Cal.4th at Whelihan, 724]; P.2d 1569.) p. of the primary As the Court has emphasized, application Supreme legal did “a determination that the defendant of risk doctrine is of harm from the risk particular not owe a duty protect plaintiff (Kahn, 1003.) 31 Cal.4th involved in the claim. [Citation.]” a from owed a legal duty protect plaintiff Whether defendant given harm, instead the risk or whether primary particular nature of on the “depends be is a law question doctrine applied, general relationship and on question parties’ sport 309, 316-317; see also id. at pp. 313; activity.” (Knight, supra, Cal.4th Kahn, 1004-1005.) 31 Cal.4th at nature determination, looks first at court making conditions, risks that determine what conduct or at issue to
sporting activity are so or inherent integral be other contexts dangerous viewed as might that an of care would either duty require itself that imposing abandoned, discourage vigorous or else essential aspect cases, not have a duty defendants do generally therein. In such participation all or to eliminate from the inherent risks sport, a plaintiff protect defendants do hand, On the other risk from the sport.
increase the risk of harm in the through what is inherent beyond sport the of the is outside range reckless behavior that completely intentional or (Kahn, Cheong 1004; supra, at v. 31 Cal.4th p. in the ordinary activity sport. 859, 1063, Antablin P.2d 946 16 Cal.4th 313, 315-320.) (Cheong); Knight, supra, 3 Cal.4th at pp. the must nature of a court sport, In the inherent examining addition to relationship activity. to the sporting themselves consider the parties what role was may vary to the same risk depending Duties with respect defendant, that role be whether by in the a particular played sporting instructor, coach, observer, owner of the venue in as passive coparticipant, in the sport. the used the of equipment which is sport played, supplier (Kahn, supra, 1004-1006.) duty the Accordingly, general at 31 Cal.4th pp. in sporting not to coparticipants care to others does apply due to avoid injury be that otherwise might and conduct conditions activities with respect integral part are seen to be an but examination as dangerous upon viewed 73 1068; (Cheong, the supra, Distefano, itself. Cal.4th at 85 supra, sport p. 1259-1261.)4 Cal.App.4th Whelihan, supra,
In the recent case the Court of Cal.App.4th was with the the Appeal presented whether use of skis question jet was an active to which the sport of risk doctrine was primary assumption applicable. Noting that cases had determined the previous that doctrine of risk several similar applied personal, noncompeti- Gouin, (Ford tive water sports [water-skiing]; Cal.4th Reason, Record v. while [“tubing” a being by boat]), motor the court determined that a pulled matter “[a]s common knowledge, is an active jet skiing involving skill and sport physical that risk of challenges pose significant when it is injury, particularly often is—together done—as it with other in the jet skiers order add to exhilaration of the by the wakes of other sport racing, jumping the skis jet boats, or in nearby making other respects more sporting activity challenging and entertaining. it is the Consequently, type sporting [Citations.] meets criteria of the doctrine governing application primary assump- (Whelihan, tion of risk.” omitted.) fn.
We are not persuaded by Whelihan appellants’ wrongly assertions assertion, decided. Whelihan Contrary the Court of in appellants’ Appeal conditions, analyzed both nature conduct or risks specific involved in jet skiing, role defendant in the particular activity and The Whelihan court relation to plaintiff. observed as in the case that—just “4 rale, others, general ‘As a persons duty may have a to use injury due care to avoid Code, be held if (See 1714.)’ liable their injures careless conduct another person. Civ. § rale, however, general This apply coparticipants sport, [Citation.] does where ‘conditions or conduct might dangerous integral that otherwise viewed are an part often of the sport respect, itself. ... In this sport highly defining nature of a relevant duty of care particular Although generally legal owed defendant. defendants have no [][] (or itself,.. duty protect plaintiff to eliminate against) risks inherent in the . defendants generally have a do to use due care not to participant increase the risks to a over situations, [j[] however, above sport. those inherent . . . some the careless conduct of sport, barring others is treated as an “inherent risk” recovery plaintiff.’ thus ordinary ‘hold sports participant coparticipant Courts should not to a for [Citation.] liable during careless conduct committed an sport’ sporting because ‘in heat of active , event a participant’s energetic accidentally . . . normal conduct often includes careless *13 [Vigorous likely legal behavior. . . . be participation sporting in such events would chilled if liability to be imposed ordinary were on a on the of his or participant basis her careless conduct.’ [Citation.] reasons, legal a general participant the test is ‘that an active breaches a in “For these participants—i.e., engages properly may subject care other to in conduct that him or of liability—only injures player her participant intentionally engages to the or another financial if totally ordinary activity in conduct is so as to range that reckless outside the involved of added, (Cheong, in sport.’ supra, citing 16 Cal.4th and p. at italics [Citation.]” 315-316, 318, 320, omitted; quoting Knight, supra, Distefano, pp. 3 Cal.4th at fn. see also supra, 1260.) Cal.App.4th 85 at p.
74 similar, in as a it was when very engaged
of other to which sports particularly and involves certain inherent risks skiing significant group activity—jet the doctrine can be The court assertions that rejected challenges. specifically or noting to contestants in events only competitive spectator sports, applied to Court has found of risk assumption applicable that Supreme repeatedly (Whelihan, supra, whether sport, competitive noncompetitive. active at 3 Cal.4th at citing Knight, supra, 110 Cal.App.4th pp. p. Gouin, 345.) at The Whelihan court also and Ford v. Cal.4th supra, of the defendant to the activity, addressed relationship plaintiff skis that the were who had both noting coparticipants purchased jet parties “ incident, a jet before the and that ‘was novice just days two plaintiff skier, . total of actual time . . having only a six hours operating [and] ” with such maneuvers’ as those “thrilling” no experience familiarity (Whelihan, 1573.) at executed the defendant. by supra, Cal.App.4th before Whelihan is with case us. clearly point The decision in facts, statements of material it is undisputed As set out the parties’ separate a a is that difference between ski and Sea-Doo only significant jet that the ski, a a using as one does on a having jet instead of stand up, person a seat.5 our there can down on For “motorcycle type” purposes, Sea-Doo sit at no difference between the skis issue in Whelihan jet is material legally analysis jet used this case. We with Whelihan’s agree Sea-Doos “an skill skiing involving challenges pose aá active sport physical which a description risk significant injury participants sport,” (Whelihan, recreational a Sea-Doo. riding activity applies equally 1569, 1573.) in the record There nothing supra, pp. distinguish the recreational Sea-Doos would concerning using found courts of this state way it in from other similar activities of risk is the doctrine of primary constitute which sports that, considerations, in the absence of other We conclude applicable. to the recre generally the doctrine applies of primary Sea-Doo, to other similar such sports as it does using just ational Gouin, 345), (Ford “tubing” at p. v. water-skiing supra, Cal.App.4th Reason, 475, 482; (Record behind a motorboat v. Mason, 550), (Whelihan, supra, jet skiing Bjork Cal.App.4th p. 16 Cal.4th 1572-1573), (Cheong, snow skiing 110 Cal.App.4th jet respondent stand-up described testimony appellants, Ferro deposition undisputed similarity engines, and manner as almost identical in terms of skis sit-down Sea-Doos only maneuvering. difference turning, slowing general The propulsion, forward down sitting—was regard' to what standing and by Ferro—aside from that between mentioned watercraft, engine stated that “the stand-up In the case of a Ferro happens when one falls off. automatically its ....” circles on own going, happens stand-up and what is the keeps [watercraft] Sea-Doo, hand, engine stops and the machine on the other When one falls off sit-down it, key you have “you that is connected “just sort of sits there in the water” because key.” strap that is connected to
75 at 1067), with a motorcycle or “dune buggy” (Distefano, “off-roading” 1255, supra, 85 at (Calhoon v. 1259-1265), Cal.App.4th pp. skateboarding Lewis (2000) 81 115-117 Cal.App.4th 394]), ice figure Cal.Rptr.2d [96 (Staten v. Superior Court skating (1996) 45 1632-1636 Cal.App.4th (Ferrari 657]), v. Grand Canyon Dories Cal.Rptr.2d river rafting (1995) [53 248, 251, 32 Cal.App.4th 65]), 253 Cal.Rptr.2d long-distance group (Moser, bicycle riding supra, at 1218-1223). Cal.App.4th pp.
. Whelihan is distinguishable from this case because contend that Appellants the roles and incident—Ferro, to this relationships parties Jason and Peart—differed in significant from those of the respects individuals before the Whelihan. that, court in Whelihan, assert Specifically, they unlike this case minors, involves two one of whom Jason) was a (respondent old 13-year novice operating Sea-Doo for the first time while Ferro respondent sat behind that, him to exist, We conclude supervise. to the extent they factual distinctions cited by do not affect the applicability doctrine of primary of risk in this case. The ages of the in Whelihan are parties in fact never mentioned. On the “ ” hand,
other the court did note that the was a ‘novice’ plaintiff skier. jet (Whelihan, supra, at 1573.) Other Cal.App.4th cases involving compa rably youth-oriented sports have either failed to mention the age of Lewis, (Calhoon at all participants v. 110-111 Cal.App.4th pp. Reason, Record v. [skateboarding]; 474-478, Cal.App.4th pp. while [“tubing” being boat]), a motor pulled by treated the essentially Mason, ages (Bjork coparticipants irrelevant v. [same].) have cited no Appellants case law that the
holding of the doctrine applicability of risk to a sporting turns on the injury age of the participants.6 6 The County Childs Santa recent case of Barbara 64 [8 There, contrary. is not to the the Court Appeal summary reversed a
judgment granted county to a under the doctrine of primary assumption of risk in a lawsuit involving 11-year-old an child who had injury fallen and suffered riding serious while a small “razor” uplifted scooter over an public section of though sidewalk. The court held that even riding a subject scooter could be primary assumption of risk doctrine under certain circumstances, the undisputed under presented engaged facts the child was in a sports-related recreational playing toy. but instead was with a The court concluded that excitement,” the child engaged was not a recreation “riding “for thrills and scooter on the sidewalk inherently dangerous merely is not might because a scooter rider fall injury,” scooter, and suffer possibility and that any person bicycle “[t]he who rides other wheeled might injured vehicle negligence impliedly of another is insufficient (Id. acting excuse others from 70-73.) with due care to avoid accidents.” The court concluded: “The doctrine of primary assumption of risk an exception to the rule all [that persons legally are liable for the harm completely recovery by caused their bars fault] injured an party irrespective negligence apply another. If we were to the doctrine to *15 Ferro on the same Sea-Doo as Jason in
Neither does the fact was riding the affect the applica the minor’s of watercraft supervise order case. evidence shows that of the of risk doctrine to this The bility role, in the his Ferro was also coparticipant despite supervisory Mason, Bjork v. (Cf. with Peart and Jason. 77 Cal.App.4th minors defendant motor boat for five “tubing” aged drove pp. [adult 15; adult control of the water was a 11 to his substantial sport, despite boat, actions in the even if were driving negligent, and his coparticipant, doctrine].) of risk Unlike the defendant swim coach by assumption protected Kahn, (Kahn, supra, neither a coach nor a instructor. in Ferro was sports 997, 1004-1006.) Even if he could be construed such—a Cal.4th record, that, would still be no for on this we basis reject—there possibility the factual and evidence allegations on him in absence of imposing liability in such a as to way that had acted or showing recklessly intentionally Ferro (Id. in the already increase the of harm those inherent beyond sport. risk & Cultural Center Japanese-American Religious Bushnell 1007-1011; (1996) 43 instructor’s [judo inherent the did nothing conduct was of the risk of instructor part sport, .)7 increase risk] Here, in failed to recklessness their Neither complaint. allege reckless adduced evidence of intentional or actions they any have specific use, involving regardless exception manner of the would injuries toys and vehicles of the their (Id. 75.) the to do.” become rule. This we decline short, defendant, the age of the but on nature of In in Childs turned not on the decision of underlying of reasons the use doctrine policy the absence Factually, the challenging nature of inherent protect sports. risk to primary to those compared on a cannot be involved riding risks of a child a scooter residential sidewalk riding. sport of Sea-Doo agree object that to be served Supreme in “We As the Court stated Kahn: recognizing a setting duty primary assumption sports of risk in the to avoid doctrine vigorous an or chill tend to the nature of active care when to do so would alter learning to process become activity. applies in This concern participation they if are to sport. and children need instruction competent competitive in such Novices that agree many Appeal Court of decisions and we participate compete, adequate learning in terms would inhibit instruction refused to define a of care set in Accordingly, we believe that the standard forth eventually sport. alter the nature of the generally apply sports applies coparticipants, as it should Knight, Cal.4th course, instructors, mind, setting. each significance facts are of in keeping in that different alleged sports instructor has support which it is that a a cause action cases in order providing adequate beyond capacity or perform the student’s without required student to instruction, intent to cause alleged proved the instructor acted with it must conduct recklessly in the that the instructor’s injury the instructor acted sense student’s or that teaching ordinary activity’ ‘totally range involved outside the [citation] added.) (Kahn, italics coaching sport.” 31 Cal.4th at actually of Ferro—or other increased risks part respondent—that inherent a Sea-Doo sufficient to demonstrate a triable issue of operating material fact as to the doctrine applicability *16 to this in the Nothing case. record recklessness on Ferro’s suggests any part, or that he did anything so outside range ordinary as to increase the to To sport inherent risks Peart of Sea-Doo. operating contrary, evidence shows that Ferro’s actions in undisputed supervis- Jason were within the ing well boundaries of normal Sea-Doo prudent conduct. The record Ferro riding shows the basics of explained adequately minors, a Sea-Doo to both to operating them wear life required jackets, them when out. went Jason and Ferro then drove accompanied they simply their Sea-Doo in and at a rate straight line moderate without speed acceleration. It was in fact Peart who in the riskier engaged appellant turns, activities of back accelerating, executing cutting and forth across the wake of Sea-Doo. Ferro did not respondents’ encourage either Jason Reason, Peart (Record to take v. beyond risks their experience ability. supra, 484-485 assuming driver of motor boat pp. [even turns, for “tubing” participants speeding making unnecessarily sharp plaintiff failed to demonstrate recklessness the risks in increasing inherent Kahn, cf. supra, sport]; 31 Cal.4th at fn. 4 for [unnecessary to plaintiff defendant coach she ad- allege was reckless “because sports facts and equately alleged evidence such a sufficient produced support conclusion”].) brief,
Contrary argument in letter circumstances of appellants’ this case are utterly unlike those addressed Kahn. Court Supreme There, the record showed the defendant coach swimming only not encouraged the novice take risks plaintiff beyond ability, her extraordinary but threatened actually her from the she failed team if to execute a drop dangerous dive for which he knew she was and of completely unprepared fear,” which “she had expressed mortal and that he had in fact previously (Kahn, promised she would not be undertake. 31 Cal.4th at required 998-1000, 1011-1013, 1015.) It was intentional and reck arguably Kahn court concluded less behavior that case range took the outside the issue, ordinary risk inherent in the the doctrine making sport primary of risk of this case inapplicable. Nothing record approaches in Kahn.8 degree reckless behavior at intentionally issue 8 Similarly, respondents injuries cannot be made liable for Peart’s virtue of the fact Ferro Mason, Bjork on which Jason rode. situation in v. provided Sea-Doos Peart and Unlike the (Cf. appellants alleged evidence case. equipment offered failure in this Mason, Bjork v. [summary judgment defendant for reversed, supplied “tubing,” piece where he all used in one equipment which failed issue].) injury caused the sum, did not that the we conclude that the trial court err finding this case
recreational Sea-Doo constituted parties law, doctrine thereby making matter of the defensive of primary assumption of risk applicable respondents. Legislative Abrogate Assumption
No Intent Common Law Risk Nevertheless, that the doctrine of argue of legislation risk does not in this case because of enactment apply in Knight, supra, to the California Court’s decisions subsequent Supreme Gouin, Ford addressing 3 Cal.4th Cal.4th 296 and specifically *17 to the use in such a as way allegedly and of watercraft regulating personal doctrine, of or at to the kind least abrogate supersede respect of in case. cite the enactment watercraft at issue this appellants Specifically, 655.7, 655, these (a), sections and 655.3.9 contend that Appellants subdivision 655, (a), any or water person manipulate states: “No shall use vessel Section subdivision skis, endanger the negligent a in or manner so as to aquaplane, an or similar device a reckless limb, life, adopt regulations the use any person. department or of The shall for of property vessels, skis, danger to water in a that will minimize the aquaplanes, or similar devices manner life, limb, purpose for the for equipment or with reasonable use of property consistent by is a a fine of not designed.” punishable which it was Violation of statute misdemeanor months, $1,000 by tine imprisonment county jail in for more than six or both more than or not (b)(3).) (§ subd. imprisonment. and shall, times, in “(c) Every personal operated at all a provides: 655.7 watercraft Section life, unnecessarily endanger unreasonably or prudent and manner. Maneuvers that reasonable limb, to, including, jumping jump the wake of property, attempting but not limited or or vessel, watercraft toward operating personal vessel within 100 of that other another feet turning range spray the vessel or sharply or in the water and at close so as person vessel is person, operating speed operator at a to another vessel so either proximity or rate of collision, reckless of a operation at the minute to avoid is unsafe or required swerve last vessel, m... m “(e) performer engaged professional to a in a exhibition apply This section does not who is tournament, exhibition, race, regatta, parade, in a marine person participating or to a who is by by permit issued by United Coast Guard or authorized other event sanctioned States held.” Violation of this entity having jurisdiction over the area where the event is the local 655.7, (f), (§§ $250. subd. punishable by an fine of not more than statute is infraction (a).) subd. (b), “(a) no part: Except provided as in subdivision provides pertinent Section 658.5 greater of than 15 operate of a vessel a motor person years age powered under 16 shall .... horsepower 12, 13, 14, (a), years age shall “(b) person no or 15 of Except provided as in subdivision person unless the is greater horsepower of than . . . powered by a vessel a motor operate years age and who attentive by person who is at least 18 accompanied in the vessel vessel. supervising operation (a) (b) “(c) following: not apply do Subdivisions exhibition. “(1) professional in a person operates performer A who vessel as race, or ski race. “(2) engaged organized regatta, vessel water person A in an California,” statutes “govern watercraft minors establish duties of care inconsistent with the specific primary assumption doctrine, criminal rise to impose penalties, thereby necessarily give civil for their Code The liability violation Evidence section pursuant 669.10 contentions, court in Whelihan addressed and these at specifically rejected (§§ (a), least with to two of 655.7). these statutes subd. We respect agree with its which we find analysis, equally statutory other applicable which provisions rely. upon
The courts of this state have affirmed repeatedly statutory provi sions like those issue do not abrogate, supersede displace primary risk doctrine unless has legislative authority explicitly manifested a clear intent to Cal.4th unambiguously do so. (Cheong, supra, 1069-1070; (conc. Kennard, id. at J.); id. at opn. Chin, (conc. J.) did opn. duties of skiers delineating [ordinance abrogate of risk doctrine skiing]; applied Moser, supra, 105 pp. 1225-1226 Code provisions [Vehicle designed to persons using do not protect public nullify roads plaintiff’s ride]; of risk in participating organized long-distance bicycle 1266-1267, Distefano, [statutory provisions off-road proscribing driving vehicles at unreasonable or unsafe or with willful and speed, wanton disregard safety for persons *18 did not evince property, legislative intent to supersede modify or of risk doctrine and “thus do not on in the impose participants “(3) A person engaged in a marine pursuant event authorized to Section 268. section, “(d) Any person any person permits any person who violates this who other section, years under 16 to age operate guilty of a violation vessel in of this is of an infraction.” may Section 655.3 provides: department adopt regulations “The to establish and maintain the for use of and the equipment vessels vessels on of the the waters this state rules of road and pilot conformity navigation rules with those contained in or the the federal laws navigation (Boldface omitted.) promulgated by rules the United States Coast Guard.” A any regulation violation of to adopted pursuant relating this section than those to vessel other equipment requirements guilty punishable by $100 is of a a fine misdemeanor of not more than or imprisonment county jail more days, for not than five both fine and imprisonment. or (§ statute, (b)(1).) Boating Waterways subd. Pursuant to of Department adopted and incorporated pilot reference the rules of the promulgated road and rules (Cal. 14, 6600.1, (a).) United Regs., States Guard. tit. Coast Code subd. § “(a) Evidence provides pertinent part: Code section The person failure of a to statute, ordinance, (1) presumed exercise due care if: He violated regulation is a or of a [ft] public (2) entity; injury The proximately person violation caused death to property; [ft] or or statute, (3) injury The death or resulted an occurrence the nature [ft] from of which the ordinance, regulation designed person suffering or was death prevent; to The or [ft] injury to or person property persons protection his was one of class of for whose statute, ordinance, regulation adopted.” tort than is established under duty of a or different off-roading higher
sport view, Knight”].)11 Appellants us no with this have cited to cases inconsistent and there are none.12 apparently states, relevant, 669[, (a) failure a ‘The of subdivision] “As section [Evidence Code] however, statute, requirements are This person presumed to due is if’ four met. exercise care Rather, merely presumption of liability. tort it rule ‘a does not establish ‘codifie[s]’ protect to a of a which was enacted class negligence arises from the violation of statute against type harm which the suffered persons plaintiff plaintiff of which the is a member of however, Knight, of presumption a of the statute.’ Under a as result the violation of [Citations.] to sport in an active liable in tort another negligence participant is insufficient to make a participant. 669[, (a) only—a a of “. Code states rule evidence subdivision] . . [Evidence S]ection ‘duty’ liability. a rule tort The word does presumption of the failure to use ‘due care’—not of may a Knight sport that a in an active sue fellow participant not in the statute. held appear only injury, of and not for mere for reckless behavior or intentional infliction
participant negligence, By establishing only a of section negligence. Code] standard [Citation.] [Evidence Because, 669[, general (a) Knight ‘As a apply governs. to cases that . . . does not subdivision] rule, others, may duty held liable if injury a use due care to avoid to persons have [citations], injures general presumption rule a person’ their another as careless conduct duty giving rise tort presumption of a breach of failure to use ‘due care’ is also [citation] duty no teaching Knight is in an active liability. participants But the basic merely negligent avoid conduct. ” ’ ‘ “ duty “Primary ‘a of defendant’s of care.’ assumption of risk involves reduction general duty ‘due care’ primary assumption risk reduces the to use Specifically, [Citations.] If, (or intentionally recklessly. Law act Revision negligently) not act not to states, presumption the section’s Commission section 669 Code] Comment [Evidence certainly not a negligence only, gross negligence, presumption not it is simple Knight applies of risk still The standard intentional reckless conduct. statute, with Evidence Code section even the violation of an ordinance or combined if presumption negligence. creates modify clearly Knight, particular “. has but whether statute Legislature power . . The itself, determining whether the merely by has so be determined from that statute done must [, (a) (Cheong, are met.” four section 669 Code] subdivision] elements of [Evidence Chin, J.).] (conc. opn. Cal.4th *19 a Cheong, with which Following analysis out in concurrence of Justice Chin in the set the that the basic agrees, the court in held majority present Supreme of the Court now Distefano supersede Knight primary the not provisions of Code section 38305 did speed law Vehicle higher off-roading a or impose participants of of doctrine to on assumption risk Knight—even off-roading participant’s violation if an different than that established under 669, 38305, Code section did create in combination with Evidence of Vehicle Code section Legislature no intention the negligence—because the statute itself evinced presumption of 1272-1273.) Knight (Distefano, Cal.App.4th modify abrogate “to the rule.” justices the view that a Supreme expressed Court have majority of the current “Because legislative assumption eliminate the of risk no intent to violation of statute that indicates doctrine, there are no of and because displace primary assumption does not risk defense view, adopt the court’s conclusion. [Citation.] with that we cases inconsistent Distefano designed to provisions of the Vehicle Code Although the facts show that violated [defendant] law, roads, of the present as to the state using public based on our conclusion protect persons (Moser, supra, 105 nullify [plaintiff’s] assumption risk.” violations do such 1226.) Cal.App.4th that the of the Although argue enactment appellants Legislature’s subject after statutes Court’s decision in demonstrates its Supreme Knight intention of risk in abrogate primary doctrine connection assumption craft, water the fact the such an intent personal statutes nowhere state us to leads conclusion. The aware Legislature clearly of the opposite law, state existing of the earlier in particularly decision Ford v. light Gouin, supra, Cal.4th 339 doctrine applying sport water-skiing, one of the activities out in specifically singled 655, 658.5, legislation. (§§ (a), subd. subd. subject (c)(2).) if the Certainly, doctrine, had intended to Legislature this well-known law supersede common it would have said Because the so. statutes do not subject demonstrate clear intent abrogate modify common law existing doctrine primary of risk with to water such respect sports skiing as jet Sea-Doo, (Whelihan, we cannot them operating construe to do so. 1575; Moser, 1226.) p.at
In connection with their argument, have notice of appellants sought judicial statutes, of the legislative portions history subject none which was introduced below before trial court. this Respondents opposed Code, motion. We now 452, take notice of judicial (Evid. these materials. §§ 459; Quelimane 26, 45, Co. v. Stewart Title Guaranty (1998) Co. Cal.4th 709, & fn. 9 960 P.2d Cal.Rptr.2d [77 will take notice of judicial 513] [courts statutory legislative history in order to ascertain meaning purpose statute]; ambiguous Larson v. State Personnel Bd. 28 Cal.App.4th & fn. 2 courts have discretion [appellate take notice judicial matter Evidence Code section specified official including acts of legislative and executive Although departments].) is a there deal this great legislative history concern over the expressing risks dangers unregulated watercraft an use and intent to personal thereof, establish fines and for unsafe there is penalties operation nothing evidencing clear legislative intent to overturn existing precedent the civil abrogate doctrine of of risk as it has been applied to numerous other water sport utilizing activities such watercraft. Indeed, the proffered materials contain no reference to civil at all. liability that, contend these
Appellants precisely because statutes kinds regulate of watercraft activities involved in case and new this establish criminal Sea-Doos, on sanctions negligent reckless watercraft such as also different and they impose higher civil duties of care individuals in such than have engaged activities heretofore been under the imposed effect, law. common want court settled law in reject *20 this state find that enactments common legislative may the law abrogate of doctrine of risk intent to primary assumption stating any without expressly do so. of would not the Adoption arguments abrogate appellants’ simply doctrine of the of risk in this case alone. If statutes at Sea-Doos like the
issue new duties of care individuals operating impose case, also such duties on necessarily in this would they impose parties including in other similar watercraft sports, individuals engaged personal an that the had intended such exten- We believe if water-skiing. Legislature law, decisional sion civil and wholesale of established liability overturning of it so would said explicitly. manifested its intent to Legislature nevertheless insist
Appellants ex- of risk doctrine in these statutes abrogate assumption primary races excluding organized competitions, regattas, certain watercraft pressly 655.7, similar their in sections events from regulatory provisions sporting evidence, Without assert that (e) subdivision 658.5. appellants retain of risk defense meant Legislature applicability assumption on this asserted premise, in those circumstances. Based exceptional exclude defense with impliedly intended argue respect Legislature statutes were intended to regulate. Appel- to the other activities which the lants’ is merit. The cited manifest simply assertion without provisions criminal sanctions or age-specific opera- intent not Legislature’s impose of watercraft high-risk operation tional limitations on otherwise personal is no mention of civil absolutely venues. There organized specified sport whatsoever, way of risk one or the defense of liability assumption intent, other. In the absence of any legislative appellants’ assumption express these to limit of risk doctrine to that the meant Legislature assumption exclude it in others and exhibition situations and particular competitive unwarranted just assumption. is that—an sum, this case—operating we hold that the issue in the criteria governing that meets all
Sea-Doo—is a of type sporting We further hold of the doctrine risk. application primary regulating enactment of various statutes Législature’s the existing abrogate watercraft was intended preempt defense to of risk a complete common law. Because primary assumption action, on that basis. summary judgment granted the trial court properly Any Appellants Failed to Establish Triable Issue Have Material Fact be interpreted cited could regulations even if the statutes Finally, law the common liability of civil unaffected form imposing trial risk, to affirm the we still be required would defense their burden carry have failed to court’s judgment. Simply put, appellants violated fact as to whether respondents a triable issue material establishing 437c, Proc., (Code subd. (p)(2).) the statutes Civ. alleged. § *21 The undisputed evidence shows that and Ferro Jason drove their Sea-Doo line, ain at a moderate straight executing without or speed, accelerating any turns or collided sharp dangerous Although maneuvers. they ultimately Peart, the record shows appellant negligence this was because of or on but recklessness their was instead due to Peart’s own maneuvers part, craft, turns to Ferro and perilously close Jason’s Ferro’s efforts to despite Peart further signal move from them. The cause of the away proximate in directly collision was Peart’s execute a turn attempt 180-degree front of the Sea-Doo by Ferro and record, operated Jason. On this failed to establish triable issue of fact as to whether any Ferro Jason their (§ own Sea-Doo in a reckless or operated manner negligent limb, (a)), life, subd. unreasonably unnecessarily endangered property 655.7, their purposely maneuvering (§ (c)). Sea-Doo close to Ferro subd. Neither is there triable issue fact as to the Ferro observed the properly law by accompanying 13-year-old Jason on his Sea-Doo supervising 658.5, (§ (b)). subd. short, even if were to we conclude that the Legislature intended that a
violation of these statutes would of the doctrine preclude application risk, would we affirm the because grant summary judgment failure to establish appellants’ triable issue of fact material as to whether violated the respondents of the statutes issue. specific provisions
Disposition The judgment is affirmed. shall Appellants pay costs respondents’ appeal.
Parrilli, J., concurred.
POLLAK, J.
concur in the
I write
majority
only
opinion.
separately
I
of the result we
emphasize
reach. Under the
in
anomaly
opinion
plurality
Knight
v. Jewett
duty
comply
duty prescribed
doctrine was articulated
the
by
the
in which the
risk
manner
the
that
Knight
what more
is
conclusion
violations
disconcerting
is
plurality),
supra,
3 Cal.4th at
are “inherent
in the
itself’
(Knight,
statute
to no civil
In
for
reason such violations can
rise
315),
give
liability.
which
p.
conduct in a
activity,
what is “inherent” and
determining
acceptable
sporting
with the law.
that the courts would insist
compliance
one would suppose
range
ordinary
what conduct
outside the
determining
“totally
(id.
320-321),
would
that
involved in the
at
one
suppose
sport”
be
the courts as
by
conduct
that
statute
would not
accepted
prohibits
and
from civil liability.
therefore immune
ordinary
Nonetheless,
of the California
pronouncements
despite
“divergent
30,
Ford
Gouin
(1992)
Court
A for petition 1, 2004. Court was denied September for review Supreme petition Kennard, J., J., should petition were of Werdegar, opinion granted.