Allabach v. Santa Clara County Fair Assn.

Decision Date28 March 1996
Docket NumberNo. H014014,H014014
Citation46 Cal.App.4th 1007,54 Cal.Rptr.2d 330
CourtCalifornia Court of Appeals Court of Appeals
Parties, 96 Cal. Daily Op. Serv. 4662, 96 Daily Journal D.A.R. 7441 Anthony ALLABACH et al., Plaintiffs and Appellants, v. SANTA CLARA COUNTY FAIR ASSOCIATION, INC., et al., Defendants and Respondents.

Rohlff, Howie & Frischholz and James S. Gottesman, San Jose, for Defendants and Respondents.

PREMO, Acting Presiding Justice.

Anthony Allabach was injured by a defective barrier while he was observing a destruction derby automobile race at the Santa Clara County Fairgrounds. He and Carol Allabach then sued Santa Clara County Fair Association, Inc., Cars, Inc., California Automobile Racing Speedways, Inc., Klauers, Inc., and Santa Clara County for negligence and strict liability. The trial court granted defendants' motion for summary judgment on the basis that Anthony expressly assumed the risk of injury via a written release of liability. Plaintiffs appealed from the order. The trial court later rendered a judgment for defendants. We exercise our discretion to treat plaintiff's appeal as filed immediately after the judgment and affirm the judgment.

APPEALABILITY

In California, the right to appeal is wholly statutory. (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21, 6 Cal.Rptr.2d 454.) In order to exercise that right an appellant must take an appeal from a statutorily declared appealable judgment or order (Code Civ. Proc., § 904.1) and must be aggrieved by that judgment or order (Code Civ. Proc., § 902).

An order granting a motion for summary judgment is not among the types of orders specified in Code of Civil Procedure section 904.1. In short, "[a]n order granting a motion for summary judgment is a nonappealable preliminary order." (Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 445, 213 Cal.Rptr. 314.)

"For many years, this court, and most, if not all appellate courts, have repeatedly admonished appellants about the failure to make the preliminary and fundamental determination that what they are appealing from is, in fact, an appealable order or judgment. (This, of course, assumes the existence of an order or judgment.) Such admonishments being of little avail, California Rules of Court, rule 13 was amended, effective July 1, 1989, to require that every opening brief contain 'either a statement that the appeal is from a judgment that finally disposes of all issues between the parties or a statement explaining why the order or nonfinal judgment is appealable.' [p] It is our experience that, despite the amendment of rule 13 of the California Rules of Court, parties continue to 'appeal' from nonexistent orders and judgments and/or from documents which are not even orders or judgments." (Shpiller v. Harry C's Redlands (1993) 13 Cal.App.4th 1177, 1179, 16 Cal.Rptr.2d 814, fn. omitted.)

California Rules of Court, rule 2(c), provides, in relevant part: "A notice of appeal filed prior to rendition of the judgment, but after the judge has announced his intended ruling, may, in the discretion of the reviewing court for good cause, be treated as filed immediately after entry of the judgment."

Plaintiffs make no argument that good cause exists for invocation of California Rules

of Court, rule 2(c), presumably because they failed to make the preliminary and fundamental determination that what they were appealing from was, in fact, appealable. But since the parties have briefed the merits of the case and defendants have failed to attack plaintiffs' notice of appeal, we invoke rule 2(c) in the interests of judicial economy.

SCOPE OF REVIEW

" 'An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. [Citations.] On review of a summary judgment in favor of the defendant, we review the record de novo to determine whether the defendant has conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial. [Citation.]' [Citation.]" (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 956, 30 Cal.Rptr.2d 690.) 1

"The existence of a duty is a question of law for the court." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.) So is the interpretation of a written instrument where the interpretation does not turn on the credibility of extrinsic evidence. (Delucchi v. County of Santa Cruz (1986) 179 Cal.App.3d 814, 820, 225 Cal.Rptr. 43.) It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiffs' causes of action. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754, 29 Cal.Rptr.2d 177.)

Plaintiffs appear to obfuscate the scope of review. They argue that this case implicates the doctrine of assumption of risk. They pose that Anthony was injured, not because of a risk inherent in the sport he was witnessing, but by a defective barrier; and that he did not have actual knowledge and appreciation of the danger. They suggest that it is a jury question whether assumption of risk bars their recovery. They principally rely on Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696.

"In Knight, a three-judge plurality of the state Supreme Court (with a fourth, Justice Mosk, concurring in the result) effectively abolished the previous judicial categorization of assumption of the risk into 'reasonable' and 'unreasonable' forms for purposes of determining whether the doctrine has been subsumed by the comparative negligence principles adopted by the court in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 ( Li ). [Citation.] After analyzing Li and the authorities it cites, Knight declared that survival of the doctrine as a defense in any given fact situation should instead turn on the distinction between 'primary' and 'secondary' assumption of risk. Primary assumption of risk according to Knight refers to 'those instances in which the assumption of risk doctrine embodies a legal conclusion that there is "no duty" on the part of the defendant to protect the plaintiff from a particular risk....' Secondary assumption involves 'those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty....' [Citation.] [p] Knight held that 'the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.' [Citation.]" (Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 653-654, 20 Cal.Rptr.2d 143.)

In Knight, the defendant stepped on the plaintiff's hand during the course of a touch football game in which both were participating players. The court upheld a defense summary judgment explaining that defendants We agree that the doctrine of assumption of risk applies to this case in the sense that it represents the other side of the duty coin. But Knight was an implied assumption of risk case and therefore different from cases involving an express or written release. (See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 1106-1107, pp. 518-520.) Knight's direction about analyzing the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport must be taken in the implied assumption of risk context. Stated another way, there is no need to analyze an activity and the relationship of the parties to that activity when the parties have expressly agreed in advance that assumption of risk applies to an activity and their relationship to that activity.

generally have no legal duty to eliminate or protect a plaintiff from risks inherent in a sporting activity. It noted that "liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport." (Knight v. Jewett, supra, 3 Cal.4th at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Knight itself recognizes that implied assumption cases are different from express assumption cases: "Although in the academic literature 'express assumption of risk' often has been designated as a separate, contract-based species of assumption of risk distinct from both primary and secondary assumption of risk (see, e.g., Prosser & Keeton on Torts (5th ed.1984) § 68, p. 496), cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk. One leading treatise describes express assumption of risk in the following terms: 'In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.' (Prosser & Keeton on Torts, supra, § 68, pp. 480-481, fn. omitted, second italics added.) [p] Since Li, California cases uniformly have...

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