Altman v. HO Sports Co.

• Decision Date: 18 May 2011
• Docket Number: No. 1:09–cv–1000 AWI JLT.,1:09–cv–1000 AWI JLT.
• Parties: Jeffrey ALTMAN, Plaintiff, v. HO SPORTS COMPANY, INC., dba Hyperlite, and Does 1 to 100, Defendants.
• Court: U.S. District Court — Eastern District of California

821 F.Supp.2d 1178

Jeffrey ALTMAN, Plaintiff,

v.HO SPORTS COMPANY, INC., dba Hyperlite, and Does 1 to 100, Defendants.

No. 1:09–cv–1000 AWI JLT.

United States District Court, E.D. California.

May 18, 2011.

Illya Hooshang Broomand, Gold River, CA, for Plaintiff.

Randolph T. Moore, Snell & Wilmer LLP, Costa Mesa, CA, for Defendants.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ANTHONY W. ISHII, Chief Judge.

This is a state law products liability action brought by Plaintiff Jeffrey Altman (“Altman”) against Defendant HO Sports Company (“HOS”). The case was originally filed in Kern County, but HOS removed to this Court. HOS now moves for summary judgment on all claims alleged against it. For the reasons that follow, HOS's motion will be granted in part and denied in part.

FACTUAL BACKGROUND ¹

A 2004 article entitled “Wakeboarding Injuries” appeared in the American Journal of Sports Medicine (“AJSM”). See Request for Judicial Notice (“RJN”) Ex. 2.² According to the article, “Wakeboarding began in the mid–1980's as a combination of waterskiing, surfing, and snowboarding.” RJN Ex. 2. The article describes wakeboarding as follows:

Wakeboarding is a relatively new water sport in which the wakeboarder or “rider” stands sideways on the wakeboard, similar to the stance used in snowboarding, and is pulled by a boat or an overhead cable system. The rider wears boot-like bindings that are permanently attached to the wakeboard, and if enough force is created, the wakeboarder's foot comes out of the binding, rather than the binding releasing from the wakeboard. The rider jumps over the wake of the boat, thus the name wakeboarding, and can perform various tricks, spins, or flips. Depending on the size of the wake and the skill level of the rider, jumping heights of up to 20 feet can be obtained.RJN Ex. 2.

Falls and failing to properly execute a trick are an inherent risk of wakeboarding. See JUMF's 17, 18. Falling or failing to properly execute a maneuver or trick can occur in myriad ways and can be the result of several factors, including human error, the rider attempting maneuvers he is not proficient at, and the dynamic uncontrollable conditions of the sport, such as water conditions, boat driving, wind, and other environmental factors. See JUMF 19. There is an inherent risk of injury or death to the rider from a fall or failing to properly execute a trick. JUMF 20. Falls can result in high impact forces on the rider, either from direct contact with the water or wakeboard. JUMF 21. The extent and application of forces on the rider depends upon a number of factors, including inter alia the rider's speed, the particular maneuver or trick attempted, and the movement of the rider's body during the trick sequence. See id. The impact forces can increase depending on the interaction of the board (or one of its edges) with the water. Id. Because wakeboarding involves jumping and landing from a height onto a relatively firm surface, there is also an inherent risk of injury to the rider from the impact forces generated in the landing. JUMF 22. If the landing is less than optimal, e.g. the board strikes the water hard or in a twisting manner or if the body posture is not optimized for absorbing the impact, the risk of injury increases, especially to the rider's lower extremities. See id. Based on the dynamics of wakeboarding, injuries to a rider's lower extremities, including the ankles and knees, are an inherent risk in the sport of wakeboarding.³ JUMF 29.

Due to the variation in riders' abilities and skill levels, and variation in riding styles, riders seek different design and performance characteristics from their wakeboarding equipment, including their wakeboards and wakeboard boots/bindings. JUMF 14. The design of the wakeboard and wakeboard boots/bindings can affect the riding style and performance of an individual rider. JUMF 15. To accommodate riders' varying riding styles, skills, and preferences, wakeboard equipment manufacturers offer a wide range of wakeboards and wakeboard boots, which offer a wide range of performance characteristics. JUMF 16. Thus, for example, wakeboard equipment manufacturers offer wakeboard boots with varying degrees of stiffness or flexibility. Id.

Because wakeboard boots are secured to the wakeboard to allow the rider to perform tricks, release occurs when the rider's feet and ankles come out of the boots/bindings. JUMF 24. In certain types of falls, a wakeboard boot may not release the rider's foot from the wakeboard boot due to the unique forces and dynamics of the particular fall. See Scott Taylor Dec. ¶ 8. That is, if sufficient tension forces are not present, the lower extremity will not separate from the binding, and release will not occur. See Van Ee Dec. ¶ 7. Because of the varied and dynamic nature of wakeboarding falls, it is possible for a rider to be injured if his foot releases from the wakeboard boot, and it is possible for a rider to be injured if his foot does not release from the wakeboard boot. See Scott Taylor Dec. ¶ 9.

To accommodate its customer's varying riding styles, skills, and preferences, HOS manufactures and sells several different wakeboard and wakeboard boot models, which offer a wide range of performance characteristics. JUMF30. Thus, for example, HOS manufactures and sells wakeboard boots with varying degrees of stiffness or flexibility. Id. In 2008, HOS offered the Atlas wakeboard boot/binding (hereinafter the “Atlas Boot”) as part of its product line. JUMF32. The Atlas Boot was marketed and sold as a “high performance” boot/binding for use by experienced riders only. JUMF 33. As part of HOS's advertising, HOS stated that the Atlas Boot “fits super snug, but the TPU stretch zone allows your feet to release when they should. This is a durable and hard charging high performance classic.” Plaintiff's Ex. K.

Between 1994 and June 22, 2008, Altman was an avid wakeboarder who had been wakeboarding between 800 and 1,000 times. JUMF's 44, 45. Altman considered himself to be an “expert” wake boarder, who was experienced, knowledgeable, and could perform a wide array of tricks.⁴ See Altman Depo. 79:4–80:7. In Altman's experience as a wakeboarder, the injuries seen more often are leg injuries, including ankles and knees. See id. at 69:14–19. Altman was not aware of a “huge amount” of ankle injuries, see id., but was aware that knee injuries occur more frequently than any other type of injury. See id. at 68:9–15. Altman personally knew people who suffered a broken leg and a broken foot while wakeboarding. See id. at 39:7–14, 42:7–10. Further, around July 2006, Altman fractured his left ankle while attempting to perform aback flip while wakeboarding.⁵ JUMF50. Also, prior to June 2008, Altman had read warnings or statements to the effect that participation in the sport of wakeboarding involves inherent risk of injury or death. JUMF 49.

Altman sustained an injury on June 22, 2008 while wakeboarding. See JUMF 1. Altman was wearing Atlas Boots and using a Hyperlite Monarch wakeboard. ⁶ See JUMF 56. Skyler Dubrow was operating the boat that was towing Altman. JUMF57. The boat was traveling at 23.5 mph. See Altman Depo. 124:4–15.⁷ Altman was doing a trick known as a “front side toe roll” when the accident occurred.⁸ See Altman Depo. 122:9–12. Altman felt like he landed short and came down a little tail heavy. See Altman Depo. 132:22–133:1. Altman explained that he had a very clean landing in that he went up, came around, landed, his right foot/ankle snapped and fell over, and then he let go of the handle. See id. at 133:18–25. Altman explained that his “ankle bent in half,” Id. at 133:3–5, and that he felt his ankle bend in half. Id. at 135:1–4. Given the way he landed, Altman did not expect his right foot to have released from the Atlas Boots.⁹ JUMF 63. However, Altman testified that he was critical of the Atlas Boot because it “bent in half with my foot in it.” Altman Depo. 136:20–23. Altman did not expect the Atlas Boots to lock his foot into the boot and allow his ankle to bend in half and break. See Altman Dec. ¶ 4. When Altman was brought back on board the boat, the ankle bones could be seen pushing against the skin. See id. at 135:5–19. Altman was taken to the hospital, and it was determined that he suffered a lateral malleolus fracture in the right ankle with displacement. See Bhagia Depo. 101:22–102:15; Plaintiff's Ex. T. The impact of the bottom of Altman's wakeboard with the water created deceleration forces through the wakeboard, the binding, into Altman's lower extremity, including his ankle. JUMF 65. The deceleration forces generated from Altman's landing fractured his right ankle. JUMF 66.

Altman has had to undergo therapy, multiple surgeries, and injections, and has also developed scar tissue and gout, and will likely need to have debridements and ankle replacement surgery. See Bhagia Depo. 103–107, 114–116, 119–120. Altman cannot stand for more than a few hours, cannot perform athletics, and his ability to perform in recreational activities will be severely limited. See id. at 15; Altman Dec. ¶ 5.

The Atlas Boots have a warning label located at the rear of each boot that reads, in part: “WARNING–HIGH PERFORMANCE BINDING: FOR USE BY EXPERIENCED RIDERS ONLY. USE OF THIS PRODUCT AND PARTICIPATION IN THE SPORT INVOLVES INHERENT RISK OF INJURY OR DEATH. EVEN IF PROPERLY FITTED, THE BINDING MAY OR MAY NOT RELEASE IN A FALL WHICH COULD RESULT IN INJURY. TO REDUCE RISK ... 4) READ OWNERS MANUAL BEFORE USE.” See JUMF75. The warning label is approximately 1? by 2?. See Plaintiff's Ex. AA. The warning label on the Atlas Boot was developed and approved by the Water Sports Industry Association (“WSIA”). JUMF76. The WSIA is an industry association that is comprised of profit and nonprofit entities associated with water sports, including manufacturers of water ski equipment, manufacturers of wakeboarding equipment, and ski boat manufacturers. JUMF 77....