McGarry v. Sax

• Decision Date: 10 January 2008
• Docket Number: No. C045727.,C045727.
• Citation: 158 Cal.App.4th 983,70 Cal.Rptr.3d 519
• Court: California Court of Appeals Court of Appeals
• Parties: Daniel Lawrence McGARRY, Plaintiff and Appellant, v. Scott W. SAX et al., Defendants and Respondents.

70 Cal.Rptr.3d 519

158 Cal.App.4th 983

Daniel Lawrence McGARRY, Plaintiff and Appellant, v. Scott W. SAX et al., Defendants and Respondents.

No. C045727.

Court of Appeal, Third District.

January 10, 2008.

CERTIFIED FOR PARTIAL PUBLICATION.^*

Daniel Lawrence McGarry, in pro. per., and Linda Foster, for Plaintiff and Appellant.

Pagliero & Associates and Candace M. Pagliero, Carmichael, for Defendants and Respondents.

RAYE, J.

Following an exhilarating performance by professional skateboarders, one of the performers flung a skateboard deck (a skateboard without wheels and hardware) into a horde of eager spectators, all vying for the prize. The spectators, plaintiff Daniel McGarry among them, toppled to the ground with the skateboard in their midst. During the melee, McGarry suffered injuries that eventually led to the removal of his clavicle bone joint.

McGarry filed a complaint for personal injury against Scott and Diane Sax, owners of Wave Skate and Surfwear (The Wave), a skateboard store on the premises where the performance took place. McGarry later identified Turn Yeto, Inc. (Turn Yeto), a skateboard manufacturer, as Doe X in the original complaint. McGarry subsequently filed an amended complaint, again alleging personal injuries against The Wave, but did not name Turn Yeto as a defendant.

McGarry appeals from an adverse summary judgment, contending the court erred in dismissing Turn Yeto, a triable issue of fact exists as to The Wave's duty to McGarry, the skateboarder who threw the skateboard acted as an agent of The Wave, the court's finding of independent contractor status does not preclude liability, and assumption of risk does not apply to a skateboard toss. In the unpublished portion of this opinion, we conclude that the judgment as to Turn Yeto is not a subject of the present appeal. The judgment in favor of The Wave is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 1996, McGarry, aged 22, attended a skateboard exhibition in the parking lot in front of The Wave's leased place of business. The parking lot was not part of the premises leased by The Wave but was used with the permission of the property management company. A group of professional skateboarders, who traveled the country giving skateboarding exhibitions, put on the exhibition before a large crowd of spectators. The professional skateboarders also participated in tournaments, where they competed as individual contestants sponsored by various companies.

Toward the end of the exhibition, one of the skateboarders announced the product toss—that they were "going to throw some stuff out"—and invited those who wanted to compete to move to a designated area. McGarry denies hearing the announcement of the product toss and that there was a designated area but recalls that he saw "some Turn Yeto skateboarder guys" throwing shirts and stickers into the crowd. He moved to that area. McGarry caught a shirt with a Turn Yeto insignia on the front. According to McGarry, "[e]verything seemed very tame."

When McGarry saw the skateboarder wave a skateboard deck at the crowd, he raised his hands and said, "right here." The skateboarder appeared to notice McGarry because of his height. McGarry estimated he stood among 50 to 100 other spectators vying for the skateboard. As the skateboard fell into the crowd, McGarry, because of his height, was able to grab it and press it against his chest. Those around him began grabbing for the skateboard. McGarry held it tight against himself but then fell to the ground. As other spectators attempted to wrest control of the skateboard, they stomped, trampled, pushed, and shoved McGarry, who ended up at the bottom of a pile of people. Eventually another spectator took possession of the skateboard. After the pile broke up, McGarry lay on the ground, in pain and severely dazed.

After the incident, McGarry did not contact The Wave about his injuries. He never entered defendants' store, nor did he speak with anyone connected with The Wave.

This description of the events leading to McGarry's injuries is largely undisputed. There are disagreements over other facts pertaining to the parties' knowledge of prior product tosses, the control of the product toss, and the nature of the relationship between Turn Yeto, The Wave, and the skateboarders, though many of these facts are undisputed as well.

McGarry submitted a declaration in which he stated he had seen only one skateboard toss prior to the incident on April 28, 1996. At that toss, no one fell down or was injured. According to McGarry, "There was nothing that I saw there that would lead me to believe that I could become injured by being involved in a product toss."

Just as McGarry disclaims an appreciation of a risk of injury from participation in the product toss, so also do defendants deny knowledge of any injuries from prior product tosses. The Wave had sponsored similar events, including skateboard tosses, several times prior to the April 1996 incident. The Wave was unaware of any injuries during those prior events. Nor was any violence reported to The Wave during the prior tosses.

The president of Turn Yeto, Tod Swank, believed many such events take place each year. Swank knew of no instance in which a product toss disintegrated into a mob scene. Swank stated he understood contact with others while trying to obtain possession of the skateboard is a risk inherent in the nature of the product toss.

However, McGarry submitted a declaration by Jacob Garcia, who had witnessed about 30 product tosses after skateboarding exhibitions. Garcia stated: "I have witnessed numerous people get injured when items are tossed into the crowd, especially when a skateboard is tossed into the crowd." Garcia stated he became injured during a toss when he caught a skateboard. Garcia attended the April 28, 1996, toss and saw McGarry catch the skateboard and end up at the bottom of a pileup.

Responsibility for the product toss is disputed. The Wave and Turn Yeto argue the product toss was under the control of the skateboarders, who were independent contractors. There is evidence that Turn Yeto supplied skateboard merchandise to The Wave for sale. Turn Yeto's representative approached The Wave about holding a skateboard demonstration outside its store. Turn Yeto and The Wave agreed to cosponsor the event. Turn Yeto arranged for the skateboarders who participated. Turn Yeto chose the date of the exhibition and provided merchandise for the skateboarders to distribute.

The Wave purchased advertising time on radio station KWOD 106.5 and provided the ramps used by the skateboarders. The Wave employees also supervised crowd control at the exhibition to ensure the general safety of onlookers. The employees did not, however, attempt crowd control in the area set aside for the skateboard toss.

McGarry offered evidence calculated to demonstrate the danger of product tosses and to establish the complicity of Turn Yeto and The Wave in sponsoring the product toss. The Wave and Turn Yeto objected to much of the evidence produced by McGarry. The trial court signed an order relating to the objections. However, the order does not reveal which of the objections were granted or denied. Defendants never requested clarification of the order.

McGarry offered a videotape produced by defendants of a skateboard product toss. Although McGarry initially stated the videotape depicts the toss at which he was injured, in his opening brief McGarry states he now believes it depicts a second skateboard toss that took place the same day. Elsewhere, McGarry describes the tape as depicting a typical skateboard product toss. McGarry also offered stills from the videotape.

However, McGarry made no effort to authenticate the videotape. His declaration fails to mention either the videotape or the stills.

The provenance of the tape remains shrouded in mystery. McGarry states The Wave produced the videotape during discovery but variously describes it as depicting the actual skateboard toss, a later skateboard toss, or a "typical" skateboard toss.

"Authentication of a writing is required before it may be received in evidence." (Evid.Code, § 1401, subd. (a).) A videotape is the equivalent of a writing under the Evidence Code and thus must comply with the requirements of Evidence Code sections 1400 and 1401. (Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440, fn. 5, 24 Cal.Rptr.2d 528.) Under Evidence Code section 1400, a video recording is authenticated by testimony or other evidence that it actually depicts what it purports to show. (People v. Mayfield (1997) 14 Cal.4th 668, 747, 60 Cal.Rptr.2d 1, 928 P.2d 485.) McGarry fails to provide any authentication of the videotape or the stills. This failure rendered the proffered evidence inadmissible at trial. It also renders it useless on appeal because we do not know what the material actually depicts.

In addition, McGarry offers pages of what appear to be the.result of Internet searches of various Web sites. The name Turn Yeto appears in various places. Again, McGarry fails to provide any authentication for these documents or explain their relevance in the summary judgment motion. In his reply brief, McGarry merely states the purpose of the Web site printouts is to show that Turn Yeto advertises its skateboarding tours to the general public, tours that "are likely" an integral part of Turn Yeto's business.

McGarry also submitted into evidence the handwritten text of an advertisement broadcast over KWOD 106.5. In part, the advertisement states: "Join me this Sunday from 2 til 5 p.m. as Toy Machine and Foundation pro skaters Jaime Thomas, Chad Muska, Ed Temples, Steve Berra and Paul Sharp join The Wave skateboard team for a demo in The Wave's parking lot." McGarry contends the advertisement shows the professional skateboarders were part of a team put together by The Wave. However, standing alone, the advertisement proves nothing.

Procedural...