Huff v. Wilkins

• Decision Date: 14 April 2006
• Docket Number: No. D044895.,D044895.
• Citation: 138 Cal.App.4th 732,41 Cal.Rptr.3d 754
• Parties: Michael HUFF, Plaintiff and Appellant, v. Matthew Steven WILKINS, a Minor, etc., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

41 Cal.Rptr.3d 754

138 Cal.App.4th 732

Michael HUFF, Plaintiff and Appellant, v. Matthew Steven WILKINS, a Minor, etc., et al., Defendants and Respondents.

No. D044895.

Court of Appeal, Fourth District, Division 1.

April 14, 2006.

As Modified April 26, 2006.

Nordstrom, Steele, Nicolette and Blythe, Alan K. Nicolette, Francis P. Papica, Los Angeles; Benedon & Serlin, Douglas G. Benedon, Los Angeles, and Gerald M. Serlin, for Plaintiff and Appellant.

Winet, Patrick & Weaver and Catherine A. Gayer, Palm Springs, for Defendants and Respondents.

McCONNELL, P.J.

In Distefano v. Forester (2001) 85 Cal. App.4th 1249, 1254, 102 Cal.Rptr.2d 813 (Distefano), this court held the primary assumption of risk doctrine the Supreme Court articulated in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight), applies to the sport of "off-roading." The issue in this case is whether the doctrine bars a tort action arising from an off-roading collision in which the 14-year-old operator of an allterrain vehicle (ATV) was driving in violation of Vehicle Code section 38503, a safety regulation that prohibits a person under 18 years of age from operating an ATV on public land without adult supervision or a prescribed safety training program, and a companion Bureau of Land Management (BLM) safety rule.

We reverse a summary judgment for the defendants. We conclude this violation of safety regulations is not within the range of activities ordinarily involved in the sport of off-roading, and to the extent the violation increased the inherent risk of a collision, the plaintiff did not assume the increased risk merely by participating in the sport. It was the defendants' burden to establish the violation did not increase the inherent risks of the sport of off-roading or was not a proximate cause of the accident, and they failed to meet their burden.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001 Steven Wilkins (Wilkins) bought a Honda 400 EX (Honda) for off-roading use by his son Matthew Wilkins (Matthew), then age 12. The Honda has a 400 cubic centimeter (cc) engine and is capable of reaching a speed of 55 miles per hour.

At the time of purchase, Wilkins received and read an owner's manual for the Honda warning that only persons 16 years of age or older should operate an ATV of more than 90 cc's. Additionally, a sticker on the Honda recommended an operator be at least 16 years of age. The Honda manufacturer offered a safety training course "through the ATV safety institute," but Matthew underwent no formal training. Before Matthew drove the Honda, Wilkins "inspected his riding position to see that he ... could reach all the controls and operate it safely." Also, Wilkins had undergone the ATV safety institute training, and he taught Matthew how to operate the Honda.

On February 22, 2003, Wilkins took Matthew, then 14 years of age, to the Glamis sand dunes, near Brawley in the County of Imperial, to ride the Honda. The area is open desert with sand dunes, uneven surfaces, brush and blind hills, and there are no marked trails or traffic signals. At approximately 7:00 p.m., which was presumably after dark, Wilkins for the first time gave Matthew permission to operate the Honda without adult supervision.

While out of Wilkins's view, Matthew drove the Honda up a blind hill at the same time Huff was approaching the hill on his ATV from the other side. Huff climbed the hill at an angle in an effort to see if another ATV was approaching, and had stopped his vehicle for one or two seconds. The Honda flew over the crest of the hill, and while airborne, collided with Huff. Matthew apologized for the accident and said he was "out of control."

Huff sustained serious injuries, and he sued Matthew and Wilkins for negligent driving and negligent entrustment, respectively.¹ They raised the primary assumption of risk doctrine in their answer, and moved for summary judgment on that ground, arguing that as a legal matter they had no duty of care to Huff. Huff opposed the motion on the ground there are triable issues of fact pertaining to whether the inherent risk of a collision was increased by Matthew's violation of Vehicle Code section 38503, which imposes requirements on ATV drivers under 18 years of age, and a BLM safety rule based on the statute.

The court granted the motion, finding Matthew's conduct "was not totally outside the range of the ordinary activity involved in the sport of ATV riding," and the negligent entrustment theory "must fail in that [such] a cause of action for negligent entrustment [is] predicated upon the negligence of a defendant driver." The court denied Huff's request for leave to amend the complaint to add allegations of reckless or intentional conduct. Judgment for the defendants was entered on September 8, 2004.

DISCUSSION

I Standard of Review

A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) A defendant satisfies this burden by showing "`one or more elements of' the `cause of action' in question `cannot be established,' or that `there is a complete defense'" to that cause of action. (Ibid.) If the defendant meets his or her initial burden, "the opposing party is then subjected to a burden of production of his [or her] own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) "De novo review is used to determine whether, as a matter of law, summary judgment was appropriately granted." (Camarillo v. Vaage (2003) 105 Cal. App.4th 552, 560, 130 Cal.Rptr.2d 26.)

II

Primary Assumption of Risk

A

"As a general rule, each person has a duty to use ordinary care and `is liable for injuries caused by his [or her] failure to exercise reasonable care in the circumstances.'" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70, citing Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561; Civ.Code, § 1714.) In the context of active sports, however, the scope of this duty is limited by the assumption of risk doctrine. (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115, 96 Cal.Rptr.2d 394.)

In Knight, supra, 3 Cal.4th 296, 11 Cal. Rptr.2d 2, 834 P.2d 696, the Supreme Court considered the proper application of the assumption of risk doctrine in light of its adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226. (Knight, at pp. 299-300, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The court "distinguished between (1) primary assumption of risk — `those instances in which the assumption of risk doctrine embodies a legal conclusion that there is "no duty" on the part of the defendant to protect the plaintiff from a particular risk' — and (2) secondary assumption of risk — `those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty.' [Citation.] Primary assumption of risk, when applicable, completely bars the plaintiff's recovery. [Citation.] The doctrine of secondary assumption of risk, by contrast, `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.' [Citation.] Whether primary or secondary assumption of risk applies `turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant's conduct breached a legal duty of care to plaintiff.' [Citation.] The test is objective; it `depends on the nature of the sport or activity in question and on the parties' general relationship to the activity' rather than `the particular plaintiff's subjective knowledge and awareness....'" (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067, 68 Cal.Rptr.2d 859, 946 P.2d 817, citing Knight, supra, at pp. 308, 313-315, 11 Cal. Rptr.2d 2, 834 P.2d 696.)

In Knight, the court held the primary assumption of risk doctrine barred a woman from recovering for personal injuries she sustained in a touch football game. The court concluded "that a participant in an active sport breaches a legal duty of care to other participants — i.e., engages in conduct that properly may subject him or her to financial liability — only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." (Knight, supra, 3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)²

The Knight court explained that "vigorous participation in [certain] sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.... [E]ven when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule." (Knight, supra, 3 Cal.4th at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

An activity falls within the primary assumption of risk doctrine if it "`"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."'" (Calhoon v. Lewis, supra, 81 Cal.App.4th at p. 115, 96 Cal.Rptr.2d 394; Bjork v. Mason (2000) 77 Cal.App.4th 544, 550, 92 Cal.Rptr.2d 49; Record v. Reason (1999) 73 Cal.App.4th 472, 482, 86 Cal.Rptr.2d 547.) "[I]n various sports, going too fast, making sharp turns, not taking certain precautions, or...