Barber v. Marina Sailing, Inc.

• Decision Date: 05 July 1995
• Docket Number: No. B084053,B084053
• Citation: 36 Cal.App.4th 558,42 Cal.Rptr.2d 697
• Court: California Court of Appeals Court of Appeals
• Parties: , 1995 A.M.C. 2200, 1996 A.M.C. 304, 95 Daily Journal D.A.R. 8879 Robert BARBER, Plaintiff and Appellant, v. MARINA SAILING, INC., et al., Defendants and Respondents.

Page 697

42 Cal.Rptr.2d 697

36 Cal.App.4th 558, 1995 A.M.C. 2200, 1996 A.M.C. 304,

95 Daily Journal D.A.R. 8879

Robert BARBER, Plaintiff and Appellant, v. MARINA SAILING, INC., et al., Defendants and Respondents.

No. B084053.

Court of Appeal, Second District, Division 5, California.

July 5, 1995.

Review Denied Oct. 19, 1995.

Devirian, Utley & Detrick and Brian S. Detrick, Wilmington, for plaintiff and appellant.

Fisher & Porter and David S. Porter, Long Beach, for defendants and respondents.

PEREZ, Associate Justice.

Plaintiff Robert Barber appeals from the summary judgment granted for defendants Marina Sailing, Inc., Harold Crum, Mike Jones, Moore and Associates and Larry Moore. For the reasons set forth below, we reverse the judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff and appellant Robert Barber ("Barber") is a highly experienced sailor. On August 25, 1992, at the invitation of his girlfriend, Barber boarded the 42-foot sailing ship Angela for a pleasure cruise around the Long Beach Harbor area which was sponsored by the girlfriend's employer, defendant and respondent Moore and Associates. The ship was owned by defendant and respondent Harold Crum and had been chartered by Moore and Associates from defendant and respondent Marina Sailing, Inc. The skipper was defendant Mike Jones. ¹

There had been some discussion about an informal race between the Angela and another boat. Because of Barber's extensive experience, he was asked and agreed to help out as a crewmember. When the Angela was ready to leave the dock, Barber stood at the bow waiting to release the dock lines. Jones, who was at the helm, was busy talking to some women. He engaged the ship's engine in reverse without calling out that he was departing the dock. The maneuver caught Barber unawares, trapping his finger in the dockline and cutting it off. Barber was able to catch his finger before it fell into the water, walked up to Jones and showed him the finger. The record is silent as to whether Barber was able to have the finger surgically reattached. ²

On January 20, 1993, Barber filed a complaint against respondents for negligence in connection with his injuries. Marina, Jones and the owner brought a motion for summary judgment, contending that as a matter of California law Barber's claim was barred by the doctrine of assumption of the risk. Moore joined in that motion. Barber opposed the motion on the ground that his claim fell within the jurisdiction of federal maritime law, which does not recognize assumption of risk as a defense. Finding that federal law did not govern, the trial court granted summary judgment for respondents under the authority of Stimson v. Carlson

(1992) 11 Cal.App.4th 1201, 14 Cal.Rptr.2d 670 (hereafter "Stimson "), which held that participants [36 Cal.App.4th 562] in sailboat races are deemed to have assumed the risk of certain injuries inherent in that activity.

STANDARD OF REVIEW

Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party's papers. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 549, 5 Cal.Rptr.2d 674.) The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556, 8 Cal.Rptr.2d 552.) All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment. (Ibid.)

While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1510-1511, 1513-1515, 285 Cal.Rptr. 385.)

Recent amendments to the summary judgment statute have changed the burden of proof. A defendant moving for summary judgment meets his burden of proof of showing that a cause of action has no merit if that party shows that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the action. (Code Civ.Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists...." (Ibid.; see Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653.)

DISCUSSION

1. Federal Maritime Law Applies To This Action.

The federal district courts have exclusive jurisdiction of any civil admiralty or maritime case, "saving to suitors in all cases all other remedies to which they are otherwise entitled." (28 U.S.C. § 1333(1).) This "savings to suitors clause" means that an injured party may have claims arising from a single accident under both federal maritime and state common or statutory law. State remedies under the savings to suitors clause may be pursued in state court or, if there is a basis for federal jurisdiction, in federal court. (Ballard Shipping Co. v. Beach Shellfish (1st Cir.1994) 32 F.3d 623, 625-626.) A maritime claim brought in the common law state courts is governed by federal maritime law, however. (Powell v. Offshore Navigation, Inc. (5th Cir.1981) 644 F.2d 1063, 1065, fn. 5.) Respondents contend that, under a recent reformulation of the test for admiralty jurisdiction, Barber's claim is not sufficiently related to maritime activities and is simply a negligence claim under California law.

Under traditional rules of admiralty jurisdiction, the mere fact that Barber's injuries occurred on navigable waters would have been sufficient to invoke maritime law. ³ In Executive Jet Aviation, Inc. v. City of Cleveland (1972) 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (hereafter "Executive Jet "), the Supreme Court signaled a possible pullback from the traditional rule, holding that an airplane crash in Lake Erie was not within admiralty jurisdiction simply because the plane crashed in navigable waters. Instead, claims arising from airplane crashes were only cognizable in admiralty if the wrong bore a significant relationship to traditional maritime activity. (Id. at pp. 268, 274, 93 S.Ct. at pp. 504, 507.)

In the wake of Executive Jet, several courts began to apply its formulation outside the context of aviation torts. (Foremost Insurance Co. v. Richardson (1982) 457 U.S. 668, 673, 102 S.Ct. 2654, 2657, 73 L.Ed.2d 300 hereafter "Foremost.") This application was expressly approved by the Foremost court, which announced a new set of rules for determining the existence of admiralty jurisdiction, regardless of whether the vessels involved were commercial or pleasure craft. Foremost arose from a collision between two pleasure craft, one boat towing a water skier and the other a bass fishing boat. As a result of the collision, one person was killed and his survivors sued the driver of the other boat for negligence. Neither boat had ever been involved in any commercial activity of any kind, nor were they under hire. The federal district court dismissed the action for lack of admiralty jurisdiction but the Fifth Circuit Court of Appeals reversed. (Richardson v. Foremost Ins. Co. (1981) 641 F.2d 314.)

The Supreme Court affirmed, holding that while the wrong involved must have a significant connection with traditional maritime activity, there is no requirement that the maritime activity be exclusively commercial. Because the wrong at issue involved the negligent operation of a vessel on navigable waters, it had a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction. (Foremost, supra, 457 U.S. at p. 674, 102 S.Ct. at p. 2658.) The court rejected the argument that commercial activity must have been involved in the accident, stressing the need for uniformity in federal maritime law regardless of whether pleasure or commercial craft were involved. The federal interest in maritime commerce could not be adequately protected if admiralty jurisdiction were limited to those actually engaged in commercial activity. Instead, "[t]his interest can be fully vindicated only if all operators of vessels on navigable waters are subject to uniform rules of conduct. The failure to recognize the breadth of this federal interest ignores the potential effect of noncommercial maritime activity on maritime commerce. For example, if these two boats collided at the mouth of the St. Lawrence Seaway, there would be a substantial effect on maritime commerce, without regard to whether either boat was actively, or had been previously, engaged in commercial activity. Furthermore, admiralty law has traditionally been concerned with the conduct alleged to have caused this collision by virtue of its 'navigational rules--rules that govern the manner and direction those vessels may rightly move upon the waters.' [Citation.] The potential disruptive impact of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation, compels the conclusion that this collision between two pleasure boats on navigable waters has a significant relationship with maritime commerce." (Id. at pp. 674-675, 102 S.Ct. at p. 2658, fn. omitted.)

Controlling the existence of admiralty jurisdiction by the status of the boats as pleasure versus commercial craft would lead to inconsistent results, permitting or denying jurisdiction based on fortuitous circumstances such as whether...