LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
Los Angeles Attorney
LIABILITY UPDATE
March 21, 2008
In Truong v. Nguyen 2007 Daily Journal D.A.R 16643, the Sixth Appellate District of the California Court of Appeal held that the doctrine of primary assumption of risk bars a claim for the wrongful death of a passenger who died as a result of a collision between the personal watercraft she was riding and another similar watercraft owned and operated by the defendants.
Long Truong and Yen Truong (Plaintiffs), parents of Decedent Rachael Truong (Rachael), sued Cu Van Nguyen (Cu Van) and Chuong Nguyen (Chuong) (Defendants) for wrongful death after Rachael was killed in a collision between two personal watercraft on Coyote Lake. The Polaris watercraft on which Rachael was riding could carry a driver and one passenger, both in a seated position. Anthony Nguyen (Anthony) was the driver of the Polaris. On July 29, 2005, Defendants moved for summary judgment of all the claims against them. Citing Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566 (Whelihan), which involved a jet ski, and Peart v. Ferro (2004) 119 Cal.App.4th 60 (Peart), which involved a Sea-Doo personal watercraft, Defendants asserted that the doctrine of primary assumption of risk applies to the recreational activity of riding personal watercraft and was a complete bar to the causes of action in the Plaintiffs’ complaint. The trial court granted Defendants’ motion for summary judgment, finding that Plaintiffs’ claims were barred by the primary assumption of risk doctrine. Plaintiffs appealed, and the Court of Appeal affirmed.
Plaintiffs contended on appeal that the primary assumption of risk doctrine did not apply in this case because Rachael was a passenger on the personal watercraft and was not engaged in an active sporting activity at the time of the accident. “Plaintiffs urge us to distinguish between ‘ordinary’ or ‘casual’ use of the personal watercraft and ‘extreme’ use such as competitions or racing and argue that the doctrine should not apply to the casual use in this case. They contend Anthony’s declaration that there are no skills required to be a passenger on a sit-down personal watercraft raises a triable issue sufficient to defeat summary judgment. We conclude the court properly granted summary judgment of the claims against Cu Van because the doctrine of primary assumption of risk applies and is a complete defense. . . .”
The appellate court observed that the California Supreme Court examined the doctrine of assumption of risk in the seminal cases of Knight v. Jewett (1992) 3 Cal.4th 296, 305-315 (Knight) and Ford v. Gouin (1992) 3 Cal.4th 339 (Ford), and recently revisited the doctrine in Shin v. Ahn (2007) 42 Cal.4th 482 (Shin) and examined the question “whether the primary assumption of risk doctrine should apply to noncontact sports, such as golf.”
In Shin, the Court had held that the primary assumption of the risk doctrine applies to golf, and that being struck by a carelessly hit ball is an inherent risk of the sport. The Court had summarized the applicable rule, stating: “In Knight . . ., we considered the duty of care that should govern the liability of sports participants. We recognized that careless conduct by coparticipants is an inherent risk in many sports, and that holding participants liable for resulting injuries would discourage vigorous competition. Accordingly, those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. They do, however, have a duty not to increase that inherent risk. [Citation.] Thus, sports participants have a limited duty of care to their coparticipants, breached only if they intentionally injure them or ‘engage[ ] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ This application of the primary assumption of risk doctrine recognizes that by choosing to participate, individuals assume that level of risk inherent in the sport.”
The appellate court pointed out that since the decision in Knight, which involved a recreational game of touch football, “our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford, supra, 3 Cal.4th 339, the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, nonteam sporting activity of waterskiing.”
Plaintiffs attempted to differentiate the present case from Whelihan, supra, and Peart, supra, arguing that the primary assumption of the risk doctrine did not apply because Rachael was just a passenger on the watercraft. Plaintiffs distinguished between “ordinary” or “casual” use of the personal watercraft and “extreme” use like professional exhibitions or racing, and argued that the assumption of the risk doctrine should not apply to the casual use in this case. The appellate court rejected this argument.
The appellate court found support for its analysis in Whelihan, supra, where the Court of Appeal concluded that jet skiing is “the type of sporting activity that meets the criteria governing application of the doctrine of primary assumption of risk.” The Whelihan court explained: “As 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.” In response to the Whelihan plaintiff’s argument that the trial court erroneously assumed “ ‘that the litigants were contestants in some sort of consensual competition event and/or spectator sport,’ ” that court noted that “the doctrine applies equally to competitive and noncompetitive but active sports.”
The court in the present matter pointed out that, while the vessel at issue in Whelihan was a “jet ski,” “[b]oth the stand-up models like the original Jet Ski and the sit-down style personal watercraft like the Polaris and the Yamaha are open to the elements; their riders are not protected by a hull or a cabin. Riders of both types of vessels wear flotation devices in the event they fall from the personal watercraft. The parties in Whelihan operated their vessels at high speeds in close proximity to one another while executing turns and other maneuvers. In Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 760 (Polaris ), there was evidence that when a Polaris personal ‘watercraft is accelerating and encounters a wave, the passenger can “get some lift” off the seat, and if the passenger is not well coupled to the craft he or she may lose balance and roll off.’ In that case, the passenger suffered serious internal, orifice injuries after being ejected off the back of the vessel into the stream of water thrust by the jet nozzle. (Ibid.) Regardless of the statistics in the NTSB report regarding the frequency of injuries involving personal watercraft, given the nature of the vessel and the manner in which it is used, the Whelihan court was correct to conclude that the activity of ‘jet skiing’ presented a significant risk of injury.”
In urging the court to reject Peart, Plaintiffs attacked the “fundamental factual underpinning of the case,” arguing that there was no evidence that sit-down personal watercraft are essentially identical to stand-up personal watercraft. “However, Plaintiffs also refer us to footnote 5 of the [Peart] opinion where the court stated: ‘In deposition testimony undisputed by appellants, respondent Ferro described stand-up jet skis and sit-down Sea-Doos as almost identical in terms of similarity of engines, and manner of forward propulsion, turning, slowing down and general maneuvering. The only difference mentioned by Ferro—aside from that between standing and sitting—was with regard to what happens when one falls off. . . .’ Thus, there is no merit to Plaintiffs’ claim that there was no factual support for the [trial] court’s conclusions.”
----Andrea Lynn Rice
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
Los Angeles Attorney
LIABILITY UPDATE
March 21, 2008
In Truong v. Nguyen 2007 Daily Journal D.A.R 16643, the Sixth Appellate District of the California Court of Appeal held that the doctrine of primary assumption of risk bars a claim for the wrongful death of a passenger who died as a result of a collision between the personal watercraft she was riding and another similar watercraft owned and operated by the defendants.
Long Truong and Yen Truong (Plaintiffs), parents of Decedent Rachael Truong (Rachael), sued Cu Van Nguyen (Cu Van) and Chuong Nguyen (Chuong) (Defendants) for wrongful death after Rachael was killed in a collision between two personal watercraft on Coyote Lake. The Polaris watercraft on which Rachael was riding could carry a driver and one passenger, both in a seated position. Anthony Nguyen (Anthony) was the driver of the Polaris. On July 29, 2005, Defendants moved for summary judgment of all the claims against them. Citing Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566 (Whelihan), which involved a jet ski, and Peart v. Ferro (2004) 119 Cal.App.4th 60 (Peart), which involved a Sea-Doo personal watercraft, Defendants asserted that the doctrine of primary assumption of risk applies to the recreational activity of riding personal watercraft and was a complete bar to the causes of action in the Plaintiffs’ complaint. The trial court granted Defendants’ motion for summary judgment, finding that Plaintiffs’ claims were barred by the primary assumption of risk doctrine. Plaintiffs appealed, and the Court of Appeal affirmed.
Plaintiffs contended on appeal that the primary assumption of risk doctrine did not apply in this case because Rachael was a passenger on the personal watercraft and was not engaged in an active sporting activity at the time of the accident. “Plaintiffs urge us to distinguish between ‘ordinary’ or ‘casual’ use of the personal watercraft and ‘extreme’ use such as competitions or racing and argue that the doctrine should not apply to the casual use in this case. They contend Anthony’s declaration that there are no skills required to be a passenger on a sit-down personal watercraft raises a triable issue sufficient to defeat summary judgment. We conclude the court properly granted summary judgment of the claims against Cu Van because the doctrine of primary assumption of risk applies and is a complete defense. . . .”
The appellate court observed that the California Supreme Court examined the doctrine of assumption of risk in the seminal cases of Knight v. Jewett (1992) 3 Cal.4th 296, 305-315 (Knight) and Ford v. Gouin (1992) 3 Cal.4th 339 (Ford), and recently revisited the doctrine in Shin v. Ahn (2007) 42 Cal.4th 482 (Shin) and examined the question “whether the primary assumption of risk doctrine should apply to noncontact sports, such as golf.”
In Shin, the Court had held that the primary assumption of the risk doctrine applies to golf, and that being struck by a carelessly hit ball is an inherent risk of the sport. The Court had summarized the applicable rule, stating: “In Knight . . ., we considered the duty of care that should govern the liability of sports participants. We recognized that careless conduct by coparticipants is an inherent risk in many sports, and that holding participants liable for resulting injuries would discourage vigorous competition. Accordingly, those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. They do, however, have a duty not to increase that inherent risk. [Citation.] Thus, sports participants have a limited duty of care to their coparticipants, breached only if they intentionally injure them or ‘engage[ ] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ This application of the primary assumption of risk doctrine recognizes that by choosing to participate, individuals assume that level of risk inherent in the sport.”
The appellate court pointed out that since the decision in Knight, which involved a recreational game of touch football, “our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford, supra, 3 Cal.4th 339, the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, nonteam sporting activity of waterskiing.”
Plaintiffs attempted to differentiate the present case from Whelihan, supra, and Peart, supra, arguing that the primary assumption of the risk doctrine did not apply because Rachael was just a passenger on the watercraft. Plaintiffs distinguished between “ordinary” or “casual” use of the personal watercraft and “extreme” use like professional exhibitions or racing, and argued that the assumption of the risk doctrine should not apply to the casual use in this case. The appellate court rejected this argument.
The appellate court found support for its analysis in Whelihan, supra, where the Court of Appeal concluded that jet skiing is “the type of sporting activity that meets the criteria governing application of the doctrine of primary assumption of risk.” The Whelihan court explained: “As 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.” In response to the Whelihan plaintiff’s argument that the trial court erroneously assumed “ ‘that the litigants were contestants in some sort of consensual competition event and/or spectator sport,’ ” that court noted that “the doctrine applies equally to competitive and noncompetitive but active sports.”
The court in the present matter pointed out that, while the vessel at issue in Whelihan was a “jet ski,” “[b]oth the stand-up models like the original Jet Ski and the sit-down style personal watercraft like the Polaris and the Yamaha are open to the elements; their riders are not protected by a hull or a cabin. Riders of both types of vessels wear flotation devices in the event they fall from the personal watercraft. The parties in Whelihan operated their vessels at high speeds in close proximity to one another while executing turns and other maneuvers. In Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 760 (Polaris ), there was evidence that when a Polaris personal ‘watercraft is accelerating and encounters a wave, the passenger can “get some lift” off the seat, and if the passenger is not well coupled to the craft he or she may lose balance and roll off.’ In that case, the passenger suffered serious internal, orifice injuries after being ejected off the back of the vessel into the stream of water thrust by the jet nozzle. (Ibid.) Regardless of the statistics in the NTSB report regarding the frequency of injuries involving personal watercraft, given the nature of the vessel and the manner in which it is used, the Whelihan court was correct to conclude that the activity of ‘jet skiing’ presented a significant risk of injury.”
In urging the court to reject Peart, Plaintiffs attacked the “fundamental factual underpinning of the case,” arguing that there was no evidence that sit-down personal watercraft are essentially identical to stand-up personal watercraft. “However, Plaintiffs also refer us to footnote 5 of the [Peart] opinion where the court stated: ‘In deposition testimony undisputed by appellants, respondent Ferro described stand-up jet skis and sit-down Sea-Doos as almost identical in terms of similarity of engines, and manner of forward propulsion, turning, slowing down and general maneuvering. The only difference mentioned by Ferro—aside from that between standing and sitting—was with regard to what happens when one falls off. . . .’ Thus, there is no merit to Plaintiffs’ claim that there was no factual support for the [trial] court’s conclusions.”
----Andrea Lynn Rice
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