Heilig v. Touchstone Climbing, Inc., A113901 (Cal. App. 10/30/2007)

Decision Date30 October 2007
Docket NumberA113901,A116162,A114413
CourtCalifornia Court of Appeals Court of Appeals
PartiesJASON HEILIG, Plaintiff and Appellant, v. TOUCHSTONE CLIMBING, INC., Defendant and Respondent.


Three appeals have been filed in the present action for premises liability and negligence brought by appellant Jason Heilig (Heilig or appellant) against defendant and respondent Touchstone Climbing, Inc. (Touchstone or respondent): from a judgment entered upon an order that granted respondent's motion for summary judgment and dismissed the action; from an order that struck respondent's cross-complaint but denied appellant an award of attorney fees; and from an order and amended judgment that awarded attorney fees to respondent.1 Appellant argues that the trial court erred by finding that the defense of express assumption of the risk bars his action. He also claims that respondent was erroneously awarded attorney fees based upon a provision in an agreement between the parties for release from liability, and that he was improperly denied an award of attorney fees pursuant to Code of Civil Procedure section 425.16, subdivision (c). We disagree and affirm the judgment and order.


Appellant was injured in a fall during a rock climbing competition at one of respondent's indoor "climbing gyms" in San Jose. He was an accomplished, experienced rock climber who pursued a sponsored career in climbing competitions. For many years before his injury, appellant regularly climbed at some of respondent's six facilities in the Bay Area that provide indoor climbing walls or terrain for climbers. He was intermittently a member of Touchstone, which entitled him to use any of Touchstone's climbing facilities, and periodically required him to execute releases from liability.2

Appellant "took a few years off" from competitive climbing, then joined Touchstone at its Concord facility on February 4, 2004, and executed the most recent Release of Liability and Assumption of Risk Agreement (Release). The Release, in standard form language, specifies that the climber recognizes and assumes the significant risks of climbing, "both known and unknown, whether caused or alleged to be caused by the negligent acts or omission" of Touchstone. Pursuant to the Release, appellant also agreed to release, discharge, and indemnify or hold harmless Touchstone from "any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity" or use of Touchstone's equipment or facilities, including any "claims which allege negligent acts or omissions" of Touchstone.

Appellant did not read the Release before he signed it, but was familiar with the terms from previously executed releases, and recognized that if, upon his "visual inspection" of the facility he felt "the climbing gym was safe," he "didn't have an issue with it." He did not indicate to any employees of Touchstone that he failed to understand the Release or request any explanation of its terms. Appellant's understanding of the Release was that he "was assuming any and all risks of injury attributed solely and entirely" to his "own physical activities while using TOUCHSTONE'S facility at the location" where he executed the agreement, but did not agree to release Touchstone from liability based on its negligence.

Appellant entered a "bouldering" competition — that is, "climbing without the protection of a rope to arrest a fall" — at Touchstone's San Jose facility on May 28, 2004. He was unfamiliar with that particular facility, but was already a member of Touchstone, so he was not given a new release to sign for the competition.

Before the climbing competition began, appellant attended a meeting at which "rules and safety procedures for the competition" were discussed. The manager of Touchstone's San Jose facility informed the competitors that the use of movable foam safety "crash pads" furnished by Touchstone was "required" for anyone climbing in the "red caution zones" near the unpadded, cement floor by the doorways of the facility, marked by red Velcro tape.3 The climbers were also informed that before a route was climbed they were responsible for appropriately placing the crash pads to land upon and providing "spotters" to "break" any falls.

The climbing course for the bouldering competition was designed, evaluated, tested and ultimately approved by experienced "route setters" based upon factors of "aesthetics, difficulty, and safety." During appellant's competitive climb, his spotter was Benjamin Polanco, a professional climber and fellow competitor who had already successfully completed the route on his second attempt. Appellant was provided by Touchstone with three or four crash pads for placement to protect him during a fall, which he felt was an adequate number. On appellant's third attempt to climb the route, he fell while jumping "for the last hold" at the top of the wall, approximately 15 feet from the ground.4 He pushed off the climbing wall as he fell, which projected his body away from the crash pads directly under the wall. Polanco broke appellant's fall by pushing his back forward, away from a window. The push caused appellant to land awkwardly, with his body weight backwards. Appellant' right foot impacted the crash pads, but his left foot struck the cement floor. He suffered severe breaks of his left foot and ankle.

After appellant filed his action for premises liability and negligence, respondent filed a cross-complaint for express indemnity, breach of contract and declaratory relief, based upon the Release. Appellant then moved to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The court denied appellant's "motion to strike under the anti-SLAPP statute," but on its own motion struck the cross-complaint as "a non-pleading" that presented "nothing more than . . . affirmative defenses" to appellant's action.

Respondent filed a motion for summary judgment, and appellant sought leave to amend the complaint. Following a hearing, the motion for summary judgment was granted on grounds that respondent established the defenses of express and implied assumption of the risk. Respondent was subsequently awarded attorney fees in the amount of $48,773, based upon a provision in the Release. Appellant's request for an award of attorney fees pursuant to Code of Civil Procedure section 425.16 was denied. These appeals followed.

I. The Summary Judgment in Favor of Respondent.

Appellant argues that the trial court erred by granting summary judgment in favor of respondent and dismissing his complaint for personal injuries. The court found that respondent established "the complete defense of both express and implied assumption" to the causes of action for negligence and premises liability. Appellant claims that the Release is "unenforceable as against public policy." He adds that the Release is a "one-sided" and "unconscionable contract of adhesion," and thus fails to establish the defense of express assumption of the risk. Finally, he maintains that the Release does not apply to his action.5

"The standards applicable to our review of a summary judgment motion are well settled. Summary judgment is properly granted if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law." (Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1068.) " `A defendant may do so as to a particular cause of action by establishing, as a matter of undisputed fact, either (1) that one of the necessary elements of that cause of action does not exist, or (2) that it has a complete defense to that cause of action. . . .' [Citation.]" (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 528.) "We review a summary judgment de novo, to determine whether triable issues of material fact exist." (Domenghini v. Evans (1998) 61 Cal.App.4th 118, 121; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1257.)

A. The Validity of the Release Under Civil Code section 1668.

We first consider appellant's assertion that the Release is invalid and therefore cannot establish express assumption of the risk as a defense.6 His claim of invalidity has two related facets: first, that respondent's effort to "exculpate itself for this type of negligence" for known risks violates public policy as articulated in Civil Code section 1668 (section 1668); and second, that the Release is an "unconscionable contract of adhesion."

"The doctrine of express assumption of the risk is founded on express agreement. [Citations.] `Although in the academic literature "express assumption of risk" often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.' [Citations.]" (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1729.) " ` "In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. [Fn. omitted.] . . . The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence." [Citation.]' [Citation.]" (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597, italics omitted; see also Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755, quoting from Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 764.)

The agreement upon...

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