Jones v. Barge, LLC

• Decision Date: 01 February 2018
• Docket Number: B265456
• Court: California Court of Appeals Court of Appeals
• Parties: BRADFORD DAVID JONES, et al., Plaintiffs and Appellants, v. THE BARGE, LLC, et al., Defendants and Respondents.

BRADFORD DAVID JONES, et al., Plaintiffs and Appellants, v. THE BARGE, LLC, et al., Defendants and Respondents.

B265456

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

February 1, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

Los Angeles County Super. Ct. No. NC044616

APPEAL from a judgment of the Superior Court of Los Angeles County, Ross M. Klein, Judge. Reversed with directions.

Alderlaw, Michael Alder, Lyssa A. Roberts and Cioffi C. Remmer for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Ian A. Stewart, Spencer Davidson and Robert Cooper for Defendants and Respondents.

____________________

INTRODUCTION

Bradford David Jones and his son Forbes Bradford Jones¹ collided while riding jet skis—Bradford was injured in the collision. Bradford, Forbes, and Bradford's wife (Maria Jones) sued The Barge, LLC and David Hubert for negligence and other tort claims. The trial court granted summary adjudication in Hubert's favor on three of the four causes of action, finding that Bradford and Forbes released Hubert from liability when they rented jet skis from The Barge, LLC. After plaintiffs dismissed the remaining cause of action, the court entered judgment for Hubert and The Barge, LLC.

Plaintiffs contend the court erred by granting summary adjudication because Hubert is not a party to the releases and there is no evidence that he owns The Barge, LLC, the releases are unenforceable as a matter of law, and a triable issue of fact exists on the gross negligence question. For his part, Hubert contends the appeal must be dismissed as untimely, and in any event the trial court's ruling was correct. We conclude the appeal is timely, and Hubert did not meet his initial burden of demonstrating that the releases in favor of The Barge, LLC applied to him. We therefore reverse with directions.

FACTS AND PROCEDURAL BACKGROUND

1. The Parties, the Releases, and the Accident

Hubert owns The Barge, a sole proprietorship engaged in the business of renting personal watercrafts (PWC), commonlyknown as jet skis. Hubert acquired the business in 2006 and became the sole owner in 2010. When he purchased the business in 2006, it was a partnership. Although Hubert purchased the business from Leslie Lieberman, her brother was "a big part of the deal." After he purchased it, Hubert renamed the business The Barge Watercraft Rentals.

On July 2, 2012, Bradford and his 16-year-old son Forbes rented jet skis from The Barge, LLC. Bradford had ridden jet skis in the past, but Forbes had not. Before renting the equipment, Bradford confirmed with attendants that Forbes was old enough to rent a jet ski and would be taught "everything he need[ed] to know" to operate it.

Bradford signed identical documents, one for himself and one for Forbes, releasing The Barge, LLC from liability. The documents were double-sided. On one side was a release (Release); on the other was a Use Agreement. Bradford signed his own Release and Use Agreement using his own name. Bradford signed Forbes's Release signing Forbes's name. Bradford signed Forbes's Use Agreement using his (Bradford's) own name.

The Release stated in relevant part as follows:

"ASSUMPTION AND ACKNOWLEDGEMENT

OF RISKS AND RELEASES OF LIABILITY

AGREEMENT

In consideration of being allowed to participate in water sports events and activities and/or being provided with water sports recreational property or services, for myself and any minor children for whom I am parent, legal guardian or otherwise responsible, and for me/our heirs, personal representatives or assigns:

(1) ACKNOWLEDGEMENT OF RISKS. I am aware that the use of a personal watercraft (pwc) or other supplemental equipment may involve certain risks and dangers. These risks may include but are no [sic] limited to (a) Changing water flow, tides, currents, wave action and ship wakes. (b) Collision with any other watercraft or any man-made or natural objects. (c) Wind sheer, inclement weather, lightning, variances and extremes of wind, weather and temperature. (d) My sense of balance, physical condition, ability to operate equipment, swim and/or follow directions. (e) Capsizing, sinking or other hazard which results in wetness, injury, exposure to the elements, immersion in cold water, hypothermia, swallowing water and/or drowning. (f) The presence of insects and exposure to dangerous marine life, exposure to pollution, bacteria and other unhealthy environmental conditions. (g) Equipment failure or operator error. (h) Heat or sun related injuries or illnesses, including sunburn, sun stroke, or dehydration. (i) Fatigue, chill and/or dizziness which may diminish your reaction time and increase the risk of an accident." [¶] . . . [¶]

After paragraphs indicating the signatory expressly assumed the risks of participation and agreed to wear a flotation device, the document stated:

"(3) RELEASE. I hereby release The Barge, LLC, Yamaha Motor Corp., BRP USA, Inc., City of Avalon, its principals, directors, officers, agents, employers, and volunteers, their insurers and each and every land owner, municipality and/or government agency upon whose property an activity is conducted ('owner') and their insurers, if and (Collectively 'Releases') FROM ANY AND ALL LIABILITY OF ANY NATURE FOR ANY AND ALL INJURY OR DAMAGE (INCLUDING DEATH) TO ME OR MY MINOR CHILDREN AND OTHER PERSONS asa result of my participation in the activity. I further understand that by participating in this activity, I take the risk of being injured or killed through my own negligence, or that of my fellow sportsman, or the failure of the equipment provided to me.

I HAVE READ THIS ASSUMPTION AND ACKNOWLEDGMENT OF RISKS AND RELEASE OF LIABILTY AGREEMENT. I UNDERSTAND THAT BY SIGNING THIS AREEMENT, I AM WAIVING VALUABLE LEGAL RIGHTS, INCLUDING ANY AND ALL RIGHTS THAT I MIGHT HAVE AGAINST THE OWNERS, THE OPERATOR NAMED ABOVE, OR THEIR EMPLOYEES, AGENTS, SERVANTS OR ASSIGNS."

Beneath the Release, and separated from it by a black line, was a section entitled "RENTER'S OBLIGATIONS." That section confirmed, among other things, that the renter would operate the equipment in strict compliance with all safety and operating procedures and instructions given by The Barge, LLC employees; that a minor would under no circumstances operate the equipment; and that renters would not operate the equipment while under the influence. Subdivision (c) stated: "I hereby assume responsibility for all persons in my party. I am at least 18 years of age, in good health, not under any influence of alcohol or drugs, and capable of safely operating the equipment. I agree on behalf of myself, and all members of my party for whom I am acting as agent, to be bound by all the terms and condition [sic] of this agreement." At the bottom of the page was a signature block, following the statement "I FULLY UNDERSTAND THIS CONTRACT AND AM SIGNING THIS ON MY OWN FREE WILL."

The flip side of the document was entitled "PERSONAL WATERCRAFT - USE AGREEMENT." It contained four sections, separated by black lines, with capitalized, underlined headings for "terms of the agreement," "responsibility for damage to equipment," "list of charges for damage [sic] equipment," and "important safety considerations & rules." Among other things, by signing the Use Agreement renters promised to follow directions and safety rules, exercise good judgment, maintain a minimum distance of 600 feet from any other personal watercraft, and travel at the lowest possible speed when approaching, departing, or operating the jet ski within 600 feet of the "sports float." The agreement stated: "The Barge, LLC has no way to determine either the level of ability, or the full extent of knowledge of the renter, and I, the renter, accept full responsibility for my own actions and by any of the below-named authorized operators and passengers (minors) for whom I take responsibility, in use of the equipment."

Just above the signature block the Use Agreement stated: "BY SIGNING THIS USE AGREEMENT, YOU HAVE AGREED TO THE RULES AND REGULATION ABOVE" and "I FULLY UNDERSTAND THIS CONTRACT AND AM SIGNING THIS ON MY OWN FREE WILL."

After signing the documents, Bradford, Forbes, and other renters traveled by water taxi to a barge. Once there, customers were met by two individuals, Michael Fekete and Stephen Hubert (Hubert's nephew), and provided with life jackets.

Stephen gathered the renters, including Bradford and Forbes, around him for a safety presentation and instructions. Stephen informed renters that, among other things, jet skis do not have brakes, so renters should not put themselves in aposition where they needed to use brakes; they should maintain a minimum distance away from other jet skis or watercraft; the jet skis could not be accelerated within 200 yards around the barge; waving one's arms above the head was the universal distress signal; and racing was permitted if renters remained parallel to each other at a sufficient distance and broke outward. After soliciting questions, Stephen directed the customers to the jet skis. Stephen boarded one of the jet skis to demonstrate the location of the various controls and operation of the craft. Stephen showed renters the start/stop switch and how to start the jet ski. He explained use of the "thumb-trigger accelerator," and the fact that the harder one squeezes the throttle, the faster the jet ski travels. He explained the jet ski's key would be clipped to the operator's life jacket and would act as a "kill switch," stopping the jet ski if the operator fell off. He advised that renters should take time to acclimate to the speed and turning capability of the craft before operating it too...