Childs v. County of Santa Barbara

• Court: California Court of Appeals
• Writing for the Court: Perren
• Citation: Childs v. County of Santa Barbara, 8 Cal.Rptr.3d 823, 115 Cal.App.4th 64 (Cal. App. 2004)
• Decision Date: 22 January 2004
• Docket Number: No. B162350.,B162350.
• Parties: Tatiana CHILDS, a Minor, Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA, Defendant and Respondent.

8 Cal.Rptr.3d 823

115 Cal.App.4th 64

Tatiana CHILDS, a Minor, Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA, Defendant and Respondent.

No. B162350.

Court of Appeal, Second District, Division 6.

January 22, 2004.

Review Denied April 28, 2004.^*

Law Offices of Jeffrey S. Young and Jeffrey S. Young for Plaintiff and Appellant.

Stephen Shane Stark, County Counsel, Michael M. Youngdahl, Lisa Rothstein, Deputy County Counsel, for Defendant and Respondent.

PERREN, J.

Tatiana Childs fell and suffered serious injury when she rode a small "razor" scooter over an uplifted section of sidewalk on a residential street in the County of Santa Barbara. She sued the County contending that the sidewalk constituted a dangerous condition of public property. The trial court ruled that the doctrine of primary assumption of risk barred liability because, as a matter of law, riding a scooter is a recreational activity, and falling is an inherent risk of the activity. She appeals a summary judgment granted in favor of the County. (Code Civ. Proc., § 437c, subd. (c).)

We conclude that riding a scooter is covered by the doctrine of primary assumption of risk only when the activity involves an element of danger, requires physical exertion and skill, and includes a competitive challenge. A triable issue exists in this case regarding whether Tatiana was riding her scooter in such a manner. Accordingly, we reverse.

FACTS AND PROCEDURAL HISTORY

While riding a scooter on a sidewalk in a residential neighborhood in the County of Santa Barbara, 11-year-old Tatiana Childs fell and suffered injuries. Acting through her guardian ad litem, Alexander Childs, Tatiana sued the County for personal injury, alleging that the County negligently maintained the subject sidewalk in a dangerous condition. (Gov.Code, § 835.)

The County moved for summary judgment contending that riding a scooter constitutes a sport or recreational activity and that, pursuant to the doctrine of primary assumption of risk, the County had no duty to protect Tatiana against a risk inherent in such an activity. In support of the motion, the County relied exclusively on the allegation in Tatiana's complaint that she was riding her scooter on a residential sidewalk and fell "as she rode over a break in the sidewalk that was raised more than three inches above the adjoining sidewalk section." The County offered no other evidence regarding the circumstances of her activity.

The trial court granted the motion concluding that "scootering is a recreational activity for purposes of the doctrine of assumption of the risk," and the "risk of coming upon uneven surfaces and falling from a scooter is inherent in the activity of riding a scooter. Any failure to maintain the sidewalk on the part of the County did not increase this inherent risk." Tatiana appeals the judgment.

DISCUSSION

To obtain summary judgment, a defendant must negate a necessary element of the plaintiff's case or establish a complete defense to the claim which eliminates the existence of all material issues of fact that require a trial. (Code Civ. Proc., § 437c, subd. (p)(2); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) We review an order granting summary judgment de novo, "applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222, 38 Cal.Rptr.2d 35.)

Tatiana contends that the County is liable because her injuries were a reasonably foreseeable risk of a dangerous condition of public property (Gov.Code § 835), and that the doctrine of primary assumption of risk does not bar recovery as a matter of law. A dangerous condition of public property is "a condition ... that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov.Code, § 830, subd. (a).)

In its motion for summary judgment, the County does not challenge the existence of a dangerous condition as defined in Government Code section 830. Instead, the County argues that its liability "is subject to any defenses that would be available to the public entity if it were a private person" (Gov.Code, § 815, subd. (b)), and that the defense of assumption of risk constitutes a complete bar to liability in this case. (Knight v. Jewett (1992) 3 Cal.4th 296, 308, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight).)

The doctrine of "primary" assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. (Knight, at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696; see also Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068, 68 Cal.Rptr.2d 859, 946 P.2d 817.) Knight distinguishes between primary assumption of risk where a person has no duty of care, and "secondary" assumption of risk where the defendant owes a duty to a plaintiff who is careless in encountering a known risk created by the defendant's breach of its duty. (Knight, at pp. 308, 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Primary assumption of risk is a complete bar to recovery. Secondary assumption of risk "is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties." (Id., at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) When the facts are not disputed, application of the doctrine of primary assumption of risk is a legal question to be decided by the court. (Id., at p. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696; Record v. Reason (1999) 73 Cal.App.4th 472, 479, 86 Cal.Rptr.2d 547.)

The doctrine of primary assumption of risk is applied to certain sports or sports-related recreational activities where "conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself" and their removal would alter the nature of the sport. (Knight, at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The doctrine is based on the commonsense conclusion that where a person is playing an active sport, others involved in the activity should not be liable for injuries caused by risks that are an inherent part of the sport unless the defendant's conduct has increased the risk of harm. (Id., at pp. 315-318, 11 Cal.Rptr.2d 2, 834 P.2d 696; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 796, 112 Cal.Rptr.2d 217.)

To make the determination that primary assumption of risk rather than comparative negligence principles applies, a court must examine the nature of the particular activity and the relationship of plaintiff and defendant to the activity and each other. (Knight, at pp. 315-317, 11 Cal.Rptr.2d 2, 834 P.2d 696; Cheong v. Antablin, supra, 16 Cal.4th at p. 1068, 68 Cal.Rptr.2d 859, 946 P.2d 817.) In Knight, the court held that a defendant owes no duty of care to protect a plaintiff against the risks inherent in the competitive team sport of football, and in a companion case, the court reached the same conclusion regarding the noncompetitive, nonteam sporting activity of water skiing. (Ford v. Gouin (1992) 3 Cal.4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.) Later cases have applied the primary assumption of risk doctrine to a wide range of sports and recreational activities. (See cases cited in Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1220-1221, 130 Cal.Rptr.2d 198.)

As a general rule, an activity falls within the doctrine if "the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury." (Record v. Reason, supra, 73 Cal.App.4th at p. 482, 86 Cal.Rptr.2d 547.) In addition, an activity subject to the doctrine necessarily matches a participant's physical skill, strength or agility against another competitor or against some other standard of performance such as a high score or a low time, and necessarily includes some element of danger. (See Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 797, 112 Cal.Rptr.2d 217.)

"The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature." (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253, 38 Cal.Rptr.2d 65.) Many sports and sports-related activities necessarily involve dangers and have rules established expressly to enhance the challenge, thrill or risk, and could not exist if vigorous participation were discouraged by the specter of legal liability. (Knight, at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Applying these criteria to the instant case, we conclude that the record does not establish as a matter of law that Tatiana was engaged in a sport or sports-related recreational activity covered by the assumption of risk doctrine. Riding a scooter may be subject to the doctrine under some circumstance, but we cannot conclude, as the trial court did, that riding a scooter is a recreational activity subject to the doctrine under all circumstances. Based on the undisputed facts, applying the assumption of risk doctrine to simply riding a scooter on a residential sidewalk would not further the purpose of the doctrine to protect sports and sports-related activities from the chilling effect of liability for injuries caused by inherent risks in the activity. To the contrary, it might chill the riding of scooters and other wheeled toys, a result which would not be consistent with the purpose of the doctrine. (See Knight, at pp. 318-320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

We analyze the evidence of the nature of Tatiana's activity, the manner in which it was performed, and its inherent risks. (Knight, at p. 315, 11...