Ford v. Gouin

• Decision Date: 24 August 1992
• Docket Number: No. S014828,S014828
• Citation: 834 P.2d 724,3 Cal.4th 339,11 Cal.Rptr.2d 30
• Court: California Supreme Court
• Parties: , 834 P.2d 724, 1993 A.M.C. 1216, 34 A.L.R.5th 769 Larry C. FORD, Plaintiff and Appellant, v. Jack GOUIN, Defendant and Respondent

Page 30

11 Cal.Rptr.2d 30

3 Cal.4th 339, 834 P.2d 724, 1993 A.M.C. 1216, 34 A.L.R.5th 769

Larry C. FORD, Plaintiff and Appellant, v. Jack GOUIN, Defendant and Respondent.

No. S014828.

Supreme Court of California

Aug. 24, 1992.

Rehearing Denied Oct. 1, 1992.

Eric D. Carlyle, San Jose, for plaintiff and appellant.

Hurley, Grassini & Wrinkle, Roland Wrinkle, North Hollywood, Ian Herzog, Santa Monica, Douglas Devries, Sacramento, Leonard Sachs, Encino, Bruce Broillet, Santa Monica, Laurence Drivon, Stockton, Robert Steinberg, Los Angeles, Harvey R. Levine, San Diego, David Harney, Los Angeles, Suzanne Leibowitz, Woodland Hills, Leonard Esquina, Sacramento, Ronald Rouda, San Francisco, Evan Marshall, Los Angeles, and Darian Bojeaux, Beverly Hills, as amici curiae on behalf of plaintiff and appellant.

Robinson & Wood, Jonathan L. Lee and Roberta M. Knapp, San Jose, for defendant and respondent.

Agajanian & McFall, Christopher J. Curtis, Cary J.C. Agajanian, Universal City, Fred L. Main, Fred J. Hiestand, Bob Roberts, San Francisco, Hancock, Rothert & Bunshoft, Paul D. Nelson, Paul S. Rosenlund and Peter J. Koenig, San Francisco, as amici curiae on behalf of defendant and respondent.

ARABIAN, Justice.

As in the companion case of Knight v. Jewett, (1992), 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (hereafter Knight ), the issue in this case is whether plaintiff's cause of action, arising out of an injury allegedly caused by the negligence of a coparticipant in an active sport, is barred under the assumption of risk doctrine. As explained in Knight, in light of the adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the assumption of risk doctrine operates as a complete bar to a plaintiff's action only in instances in which, in view of the nature of the activity at issue and the parties' relationship to that activity, the defendant's conduct did not breach a legal duty of care owed to the plaintiff. As Knight also explains, in general the legal duty applicable to a coparticipant in an active sport simply is a duty to avoid either intentionally injuring another participant or engaging in conduct so reckless as to bring it totally outside the range of the ordinary activity involved in the sport. A coparticipant in an active sport ordinarily bears no liability for an injury resulting from conduct in the course of the sport that is merely careless or negligent.

After summarizing the facts of this case, I shall proceed to apply the principles set out in Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, considering, in the process, whether a provision in the Harbors and Navigation Code prescribes the duty of care governing the liability of defendant on the facts of this case.

I

On June 12, 1983, plaintiff Larry C. Ford was seriously injured while water skiing in the "Warren Cut" channel of the Sacramento River Delta. At the time of the accident, plaintiff was skiing barefoot and backward. He was injured when the back of his head struck a tree limb that extended over the channel from one of the riverbanks.

After the accident, plaintiff filed this action against defendant Jack Gouin, a friend of plaintiff, who, at the time of the accident, was driving the boat that towed plaintiff. In his complaint, plaintiff alleged that the accident was proximately caused by defendant's negligence in driving the boat too close to the riverbank.

After several depositions were taken, defendant filed a motion for summary judgment, asserting that even had he been negligent in driving the boat, plaintiff nonetheless was totally barred from bringing the action by the so-called "reasonable implied assumption of risk" doctrine, as reflected in the then-recent Court of Appeal decision in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536 (Ordway ). In support of his motion, defendant relied on the following concessions in plaintiff's deposition: (1) plaintiff was an experienced water skier and had begun water skiing barefoot and backward approximately two years prior to the time of the accident, although he had not yet mastered the technique and could not cross the wake without falling down; (2) plaintiff had selected the water skiing site, had decided upon the length of the tow rope, and had skied on that stretch of water at least fifty times in the past; and (3) at the time of the accident, plaintiff was wearing a protective neck brace and other safety equipment and thus was aware the sport was risky. Defendant also relied on the declaration of an accident reconstruction expert who stated that the channel was only 120 feet wide at the point where the accident occurred, and that, in the expert's opinion, "the selection of this particular site by the plaintiff caused the accident in question." ¹

In opposing the summary judgment motion, plaintiff relied on the declaration of a water ski expert--a two-time national champion--who stated that (1) "it is the responsibility of the driver of the boat to watch out for the skier being towed, like a guide dog for a blind person [and] ... to drive a course not dangerous to the skier," (2) he had skied in the same area--the Warren Cut--where plaintiff had been injured, and (3) in his opinion, the site "was a reasonably safe area in which to ski barefoot and backwards and was an area which provided an adequate and safe area of lateral movement, especially since the area of lateral movement when skiing barefoot and backwards is greatly reduced from the usual area when water skiing forward with skis." Plaintiff also relied on his own declaration reciting his familiarity with the area in which the accident occurred and stating that "there was plenty of room between the eastern and western shores, even if the width was 120 feet, to avoid the trees while skiing, if the driver had been steering a proper course." Finally, plaintiff relied on a portion of defendant's deposition acknowledging that, prior to the accident, defendant had driven water skiers in the same area of the Warren Cut on more than five occasions.

After considering the parties' papers, the trial court granted summary judgment in favor of defendant. On appeal, the Court of Appeal affirmed the judgment. It concluded that (1) under Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the so-called "reasonable implied assumption of risk" doctrine may apply to totally bar a plaintiff's action, and (2) the doctrine was applicable because plaintiff, by voluntarily choosing to ski barefoot and backward in the Warren Cut, "impliedly assumed the risk [that the driver of his boat] might veer from a straight course and tow him in such a way he would collide with a branch overhanging the waterway...."

Plaintiff sought review, noting that the Court of Appeal's endorsement of the "reasonable implied assumption of risk" doctrine conflicted with the earlier Court of Appeal decision in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, which rejected the doctrine. Plaintiff contended that even if such a doctrine should be recognized, it would be inapplicable in the present case, because a factual dispute existed at least as to whether plaintiff, in skiing backward and barefoot in a relatively narrow tree-lined channel, had acted "unreasonably" rather than "reasonably." In view of the conflict among the Courts of Appeal, we granted review.

II

As we have explained at some length in Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the question whether plaintiff's action properly was barred under the assumption of risk doctrine does not depend on the reasonableness or unreasonableness of plaintiff's action in skiing backward and barefoot in a narrow tree-lined channel, nor on whether plaintiff subjectively knew of the specific risk of harm posed by defendant's allegedly negligent driving or impliedly consented to relieve or excuse defendant of a duty of care owed to plaintiff. Instead, the propriety of the summary judgment turns on whether defendant's alleged conduct breached the legal duty of care that defendant owed to plaintiff.

As in Knight, defendant was a coparticipant in the sports activity in which plaintiff was engaged when he was injured. Under the authorities discussed in Knight, defendant, as a coparticipant, properly could be held liable only if he intentionally injured plaintiff or engaged in conduct that was so reckless as to be totally outside the range of the ordinary activities involved in the sport. In light of such a limited duty owing to plaintiff, it would clearly appear that summary judgment in favor of defendant properly was entered, because plaintiff's evidence indicates that defendant was, at most, careless in steering the boat.

Plaintiff argues, however, that although a rule limiting a coparticipant's duty of care to the avoidance of intentionally injurious or reckless conduct appropriately may be applied to a "competitive" sport such as the touch football game involved in Knight, such a limited duty should not apply in the context of a "cooperative" sport such as water skiing. Although most of the prior authorities cited in Knight did involve sports that are played by competing teams, the rationale of those decisions is, in our view, equally applicable to an active sport such as water skiing even when it is engaged in on a noncompetitive basis.

As noted in Knight, the decisions that have recognized the existence of only a limited duty of care in a sports situation generally have reasoned that vigorous participation in the sport likely would be chilled, and, as a result, the nature of the sport likely would be altered, in the event legal liability were to be imposed on a sports participant for ordinary careless conduct. (Knight, supra, at p. 318, 11 Cal.Rptr.2d at p. 16, 834 P.2d at p. 710.) This reasoning applies to water skiing. Even when a water...