Ferrari v. Grand Canyon Dories

• Decision Date: 10 February 1995
• Docket Number: No. C017469,C017469
• Citation: 32 Cal.App.4th 248,38 Cal.Rptr.2d 65
• Court: California Court of Appeals Court of Appeals
• Parties: Diane FERRARI, Plaintiff and Appellant, v. GRAND CANYON DORIES et al., Defendants and Respondents.

Page 65

38 Cal.Rptr.2d 65

32 Cal.App.4th 248

Diane FERRARI, Plaintiff and Appellant, v. GRAND CANYON DORIES et al., Defendants and Respondents.

No. C017469

Court of Appeal, Third District, California.

Feb. 10, 1995.

Rehearing Denied March 7, 1995.

Review Denied April 27, 1995.

Jeanette L. Ithurburn, Trezza, Ithurburn, Steidlmayer & Ithurburn, Yuba City, for plaintiff and appellant.

Domenic D. Spinelli, Lynette T. Morrow, Edson & LaPlante, Sacramento, for defendants and respondents.

PUGLIA, Presiding Justice.

Plaintiff appeals from a judgment of dismissal following an order granting defendants' motion for summary judgment. Plaintiff's complaint seeks damages for injuries suffered when her head struck the metal frame of a raft during a commercial rafting trip sponsored and conducted by defendants. The trial court concluded plaintiff's negligence claim is barred by the doctrine of primary assumption of risk and her product liability claim fails because defendants supplied a service, not a product. We shall affirm.

I

Plaintiff participated in a five-day commercial raft trip on the Colorado River sponsored and conducted by defendant Grand Canyon Dories, aka GCD Raft Trips (hereafter GCD). Rubber rafts used on the trip were equipped with metal frames laid across the top of the gunwales and secured by straps. These frames are constructed of metal tubing joined together in the shape of a rectangle which is covered by fabric to form a flat surface on which supplies and equipment may be secured. The frame is positioned in the center of the raft and extends across its entire width and over approximately half its length, leaving room at the front and rear of the raft for passengers. Oar locks are attached to each side of the frame and in the center is a place for a "guide" to sit and row or steer.

Prior to embarking on the trip, plaintiff signed a "release" absolving GCD of responsibility for injuries she might sustain during the trip. Plaintiff was also given safety instructions. For example, she was told where to sit, that it was necessary to hold onto the raft while navigating rapids and where to hold on, and how to react if thrown out of the raft into the water.

During the trip, as the raft was approaching a rapids, plaintiff was kneeling in the rear taking photographs. She asked the guide if she could remain in that location and continue taking pictures. He advised she could but admonished her to hold on. Plaintiff held onto the raft with one hand and held the camera with the other. While traversing the rapids, the raft made a "violent movement," causing plaintiff to strike her head on the metal frame several times, resulting in the injuries complained of in this action.

Plaintiff initiated this action against GCD and one of its partners, George Wendt. Also named as defendants are Outdoors Unlimited River Trips and Oars, Inc. ¹ Professional River Outfitters, the manufacturer of the metal frame, was added as a DOE defendant but entered into a good faith settlement and was dismissed.

The complaint alleges negligence and product liability. Defendants moved for summary judgment relying on express and implied assumption of risk and the fact they provided a service, not a product. The court granted summary adjudication as to the product liability claim only. Defendants renewed their motion on the negligence claim and the court granted the motion on the basis of implied assumption of risk.

II

"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055, 229 Cal.Rptr. 374.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.)

In their motion for summary judgment, defendants argued the type of injury suffered by plaintiff is a risk inherent in white water rafting and hence plaintiff's claim is barred by the doctrine of primary assumption of risk.

In Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ) and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 (Ford ), the court explained primary assumption of risk occurs when a party voluntarily participates in a sporting event or activity involving inherent risks. Such risks include, for example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball. (3 Cal.4th at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Primary assumption of risk is merely another way of saying no duty of care is owed for risks inherent in a given sport or activity. It is a complete bar to recovery. (3 Cal.4th at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

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. (Knight, supra, 3 Cal.4th at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696.) For example, in Ford, the court held the driver of a boat owed no duty to a skier who was injured when his head struck a limb extending over the water. In rejecting the plaintiff's argument that primary assumption of risk should not apply to a cooperative activity such as water-skiing, the court explained: "Even when a water-skier is not involved in a 'competitive' event, the skier has undertaken vigorous athletic activity, and the ski boat driver operates the boat in a manner that is consistent with, and enhances, the excitement and challenge of the active conduct of the sport. Imposition of legal liability on a ski boat driver for ordinary negligence in making too sharp a turn, for example, or in pulling the skier too rapidly or too slowly, likely would have the same kind of undesirable chilling effect on the driver's conduct that the courts in other cases feared would inhibit ordinary conduct in various sports." (Ford, supra, 3 Cal.4th at p. 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

In Knight and Ford, the court held negligent conduct of a participant in an active sport is an inherent part of the game. Certain sports have inherent risks which do not involve the want of ordinary care by other participants. Skydiving is an obvious example. In snow skiing, the risk of falling on steep slopes or uneven terrain is an inherent part of the sport. " 'Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.' " (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 123, 266 Cal.Rptr. 749, quoting from Mich.Stat.Ann., § 18.483(22)(2).)

Plaintiff acknowledges that white water rafting has certain inherent risks. For example, violent movement of the raft while traversing rapids can cause the raft to overturn or the occupants to be thrown into the water where they risk striking rocks or even drowning. The risk of being thrown involuntarily about inside the raft and colliding with objects or people therein is also an inherent part of the activity. ² Rafting trips are generally rated according to the difficulty of the rapids encountered in order that those embarking on a trip may know what to expect.

"[T]he scope of the legal duty owed by a defendant frequently will depend on the defendant's role in, or relationship to, the sport." (Knight, supra, 3 Cal.4th at p. 317, 11 Cal.Rptr.2d 2, 834 P.2d 696.) It is generally recognized commercial operators of recreational activities "have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort's negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant." (Knight, supra, 3 Cal.4th at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270, an experienced rider was injured when she fell from a horse during training. She sued her instructor and the owner of the stables for negligence claiming they caused her to jump over fences which were unreasonably and unnecessarily high and improperly designed, located, and spaced. The Court of Appeal reversed summary judgment for the defendants. While recognizing the risk of injury from a fall cannot be eliminated "and in fact creates the challenge which defines the sport," i.e., is an inherent part of the sport, the court concluded these defendants owed a duty "to avoid an unreasonable risk of injury to plaintiff and to take care that the jumping array was not beyond the capability of horse and rider." (Id. at p. 823, 20 Cal.Rptr.2d 270.)

As the commercial sponsors and operators of the rafting trip, defendants owed plaintiff a duty not to increase the risks inherent in the activity. Plaintiff contends defendants breached this duty in two ways: (1) by permitting her...