Luna v. Vela, B203392.

• Citation: 169 Cal.App.4th 102,86 Cal. Rptr. 3d 588
• Decision Date: 15 December 2008
• Docket Number: No. B203392.,B203392.
• Court: California Court of Appeals
• Parties: FABIAN LUNA, a Minor, etc., et al., Plaintiffs and Appellants, v. EDILBERTO VELA, Defendant and Respondent.

169 Cal.App.4th 102

86 Cal. Rptr. 3d 588

FABIAN LUNA, a Minor, etc., et al., Plaintiffs and Appellants, v. EDILBERTO VELA, Defendant and Respondent.

No. B203392.

Court of Appeals of California, Second District, Division Seven.

December 15, 2008.

Blumberg Law Corporation, Ave Buchwald and John P. Blumberg for Plaintiffs and Appellants.

Pollak, Vida & Fisher, Michael M. Pollak, Daniel P. Barer; Law Offices of Roger A. Koll and Russell P. McQuown for Defendant and Respondent.

OPINION

PERLUSS, P.J.

Fabian Luna, through his guardian ad litem, appeals from the judgment entered after the trial court granted summary judgment in favor of Edilberto Vela in Luna's action for personal injuries suffered when Luna tripped over a net line and fractured his elbow while participating in a recreational volleyball game in Vela's front yard. Luna contends the trial court improperly applied the doctrine of primary assumption of the risk to bar his recovery. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident

Thirteen-year-old Luna was invited to join Vela's summer evening game of volleyball in July 2004. Vela had created a volleyball court in his front yard, using a volleyball set he had purchased consisting of a net, net poles, tie lines to hold up the poles and yellow stakes to secure the tie lines in the ground; he set up the equipment for family and friends who were at his house that evening.¹ Luna, who lived with his family across the street from Vela, joined the game approximately 45 minutes after it started.²

About 10 minutes after play had resumed, a ball was hit out-of-bounds and into the street. (The sidewalk was being used as one of the out-of-bounds lines for the front yard court.) Luna went to retrieve the ball, tripped on one of the lines used to support the poles for the volleyball net and fell, hitting his arm on the street and fracturing his right elbow. The tie line, which was the same color and made from the same material as the volleyball net itself, was stretched across the sidewalk and anchored by one of the yellow stakes next to a tree in the narrow grass parkway between the sidewalk and the street. According to Luna's father, William Luna, when Vela told him his son had been injured. Vela said he had tripped on the "invisible string" used to hold up the volleyball net. The tie line is elsewhere described as a "thin pinkish colored string or wire."

2. Luna's Complaint and Vela's Motion for Summary Judgment

Luna filed an unverified form complaint for personal injuries against Vela, alleging causes of action for general negligence and premises liability and seeking hospital and medical expenses, future medical expenses and general damages "according to proof." Vela answered with a general denial and asserted 12 affirmative defenses, including assumption of the risk.

Following discovery, including the deposition of Luna, Vela moved for summary judgment on the ground any recovery was barred by the doctrine of primary assumption of the risk. Vela argued being injured by tripping over a volleyball net pole line is a risk inherent in a front yard volleyball game. Luna opposed the motion, contending Vela had unreasonably increased the risk of injury inherent in the sport by his negligent placement of the net pole lines and by his use of nearly invisible string or wire, unmarked by flags or distinctive coloring, to secure the net poles. Luna disputed, among other things, that photographs submitted by Vela in support of the motion accurately depicted the net and supporting lines as assembled on the date of the accident: The photographs show the line attached to a stake on Vela's front yard just inside the sidewalk; Luna's father testified the line stretched across the sidewalk and was anchored in the parkway next to a tree.

3. The Trial Court's Order Granting Summary Judgment

The trial court granted the motion. Citing to and quoting from the Supreme Court's landmark decision in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight) and several Court of Appeal decisions, the court ruled Luna's action was barred by the doctrine of primary assumption of the risk: "Generally, a defendant has no duty to protect a plaintiff against risks inherent in the sport, but [does] have a duty to use care not to increase the risks to a participant over and above those which are inherent in the sport.... [¶] Here, plaintiff's theory is that defendant's placement of the net increased the risk of the informal volleyball game. In opposition [to] the motion, he proffers evidence which would create a triable issue of material fact with respect to the question of whether defendant negligently placed the tie lines for the net.... [¶] Taking into account the dispute as to where the tie lines were placed, the court must look to the nature of the sport in question and the parties' relationship to the activity to determine whether defendant's conduct increased the risks. [Citation.] That determination is a question of law. [Citation.] [¶] From the evidence presented, the Court finds that even taking plaintiff's version of the events as true, defendant did nothing to increase the risks inherent in an informal volleyball game. The net was set up in defendant's front yard and the location at which to place net poles and tie ropes was limited. Even if one could find negligence in defendant's placement of the tie ropes, attaching liability would chill the participation in common, casual recreational activities. [Citation.] Plaintiff failed to proffer any evidence to support his argument that defendant increased the inherent risk of volleyball, which includes tripping over the structures necessary to hold up the net."

DISCUSSION

1. Standard of Review

(1) We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 [4 Cal.Rptr.3d 103, 75 P.3d 30] (Kahn); Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348 [1 Cal.Rptr.3d 32, 71 P.3d 296].) Application of the primary assumption of the risk doctrine involves "a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim." (Kahn, at p. 1003.)

2. Knight and Its Progeny and the Principles Governing the Doctrine of Primary Assumption of the Risk

(2) In Knight, supra, 3 Cal.4th 296, in a plurality decision written by Chief Justice George and subsequently accepted by all members of the court except Justice Kennard (see, e.g., Shin v. Ahn (2007) 42 Cal.4th 482, 491 [64 Cal.Rptr.3d 803, 165 P.3d 581]; id. at pp. 500-501 (conc. & dis. opn. of Kennard, J.)), the Supreme Court explained in a sports setting, under the primary assumption of the risk doctrine, the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate and the defendant generally owes no duty to protect the plaintiff from those risks. "[A] court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant's role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm." (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [41 Cal.Rptr.3d 299, 131 P.3d 383] (Avila).)

As applied to the potential liability of sports participants themselves, careless conduct alone is not enough; a participant owes no duty to protect a coparticipant from particular harms arising from ordinary or simple negligence. (Knight, supra, 3 Cal.4th at pp. 308-309; Avila, supra, 38 Cal.4th at p. 161.) Rather, "coparticipants' limited duty of care is to refrain from intentionally injuring one another or engaging in conduct that is `so reckless as to be totally outside the range of the ordinary activity involved in the sport.'" (Shin v. Ahn, supra, 42 Cal.4th at pp. 489-490.) This limited duty analysis grounded in the primary assumption of the risk doctrine applies to a wide variety of active sports—for example, touch football (Knight, at p. 320); skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068 [68 Cal.Rptr.2d 859, 946 P.2d 817]); competitive swimming (Kahn, supra, 31 Cal.4th at p. 996); and baseball (Avila, at p. 161)—as well as less active, noncontact sports such as golf (Shin, at p. 497).³

(3) Although acknowledging that one generally owes a duty of ordinary care not to cause an unreasonable risk of harm to others, in these sports liability cases the Supreme Court has held the policy considerations involved in determining the existence and scope of a defendant's duty necessarily become intertwined with an evaluation of the nature of the activity involved and the relationship of the parties to that activity. (See, e.g., Knight, supra, 3 Cal.4th at pp. 315-316; Kahn, supra, 31 Cal.4th at p. 1004; Shin v. Ahn, supra, 42 Cal.4th at pp. 488-499.) Central to the court's evaluation of duty is avoiding rules of liability that will alter the fundamental nature of the sport or chill the fervor of athletic competition. "[A]s a matter of policy, it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events. Accordingly, defendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport." (Kahn, supra, 31 Cal.4th at p. 1004; accord, Shin, at p. 489 [In Knight the Supreme Court "stressed the chilling effect that would flow from imposing liability on touch football players for ordinary careless...