The California Court of Appeal recently reviewed whether a summary judgment in favor of certain defendants was appropriate due to a plaintiff’s primary assumption of risk. The court in this case examined whether the defendants owed a duty to the plaintiff’s son, who had been skateboarding downhill for fun when he was fatally injured.
Richard Bertsch was in Mammoth Lakes with his two sons, Brett and Mitchell, when a tragic accident took place. Brett and Mitchell were skateboarding, without helmets, and traveling downhill at a speed that Mitchell called “pretty fast.” They had climbed up a hill for the purpose of then cruising downhill on their boards. While traveling downhill on the wrong side of the street, the front wheels of Brett’s skateboard stopped when they hit a gap in the road, ejecting Brett from the board. Brett’s head struck the pavement as he hit the ground, causing a traumatic brain injury and resulting in his death.
Richard Bertsch sued Sierra Star and Mammoth for wrongful death, as well as negligence, premises liability, and negligent infliction of emotional distress. The defendants moved for summary judgment on the ground that the lawsuit was barred by the primary assumption of risk doctrine. Since Brett assumed the risks inherent in skateboarding, including the risk of falling, the defendants argued they owed no duty to to Mr. Bertsch to protect Brett against that risk. In response, Mr. Bertsch maintained that Brett was not engaged in a sport-like activity but was cruising on his skateboard at a low speed.
The trial court found that since Brett and Michael deliberately climbed a hill in order to have a downhill ride, they were looking for the thrill and enjoyment of cruising on their skateboards. Using their boards this way was not a mode of transportation, and primary assumption of risk applied to this conduct. The trial court granted the motions in favor of the defendants.
On appeal, the California Court of Appeal stated that as a general rule, people have a duty to avoid injuring others and can be held liable when their conduct does cause harm to others. The existence and the scope of a defendant’s duty are questions for the court. Under the primary assumption of risk doctrine, a defendant does not owe a duty to protect a participant in an activity against risks inherent in that activity. For example, conditions that might be seen as dangerous, when viewed in a sports setting, are often integral to the sport itself. Here, the appellate court used the example of ski moguls. The risks posed by moguls are part of the sport of skiing, and a ski resort is not required to eliminate them.
Another relevant issue is the defendant’s role regarding the sport. Some relationships give rise to a duty of care not to increase risks to a participant. For example, a coach must not increase risks that are inherent in the learning process of a student. In the case at hand, the court looked at the nature of skateboarding and the defendants’ role in Brett’s participation in that activity.
The court stated that skateboarding is an activity that falls under the primary assumption of risk doctrine. It is done for enjoyment, requires physical exertion and skill, and involves a challenge containing a potential risk of injury. In this case, Brett was traveling downhill on his skateboard, with the inherent risk of injury stemming from the prospect of falling off his board. The court rejected the plaintiff’s contention that since Brett was neither participating in an organized skateboarding activity nor attempting high-risk maneuvers, the doctrine of primary assumption of risk was inapplicable.
The court distinguished cases in which the evidence showed that the plaintiff had been merely transporting himself, rather than seeking thrills or excitement on his scooter or skateboard. In this case, Brett had climbed the hill on this skateboard in order to then come back down at a greater speed, for the thrill of the experience. In a different case, an 11-year-old was injured when traveling on her scooter on a public sidewalk. There, primary assumption of risk did not apply because she was not performing a stunt or seeking thrills when she fell and injured herself.
In conclusion, the appellate court stated that coming down a hill on a skateboard presents a greater challenge than riding on a flat surface. Brett had been on the wrong side of the street, which also increased his risk of falling. The risk increased because if there had been an oncoming car, Brett would have had to deftly maneuver to avoid a collision.
The court also stated that the defendants did not owe a duty of care to not increase the risks of skateboarding because there was no organized relationship between the defendants and Brett in the skateboarding activity. Additionally, it would be an unnecessary burden to require water districts and road owners to make their roads safe for skateboarding.
The court affirmed the judgment of the lower court, finding that the trial court properly granted the defendants’ motions for summary judgment, based on primary assumption of risk.
The wrongful death attorneys at Sharifi Firm provide guidance and representation to injured Southern California residents seeking compensation following an accident. We provide a free, no-obligation consultation and can be reached by calling 866-422-7222.
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California Court Holds Release of Liability at Trampoline Facility was Clear, Unambiguous, and Explicit, Southern California Injury Lawyer Blog, May 9, 2016