Peart v. Ferro, A099199.

Decision Date28 May 2004
Docket NumberNo. A099199.,A099199.
Citation13 Cal.Rptr.3d 885,119 Cal.App.4th 60
CourtCalifornia Court of Appeals Court of Appeals
PartiesAdam PEART, a minor, et al., Plaintiffs and Appellants, v. Paul E. FERRO, et al., Defendants and Respondents.

McGUINESS, P.J.

This case raises the questions whether the recreational use of a Sea-Doo personal watercraft constitutes a sport for purposes of the doctrine of primary assumption of risk, as set out by our Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight) and its progeny, or whether instead the Legislature has preempted the scope of that doctrine as it would otherwise be applied to the use of the sorts of personal watercraft of which the Sea-Doo is an example.

Tracy Peart and minor Adam Peart (Peart), by and through his mother and guardian ad litem Tracy Peart, appeal from a final judgment entered against them and in favor of respondents Paul E. Ferro (Ferro), Julie Ferro, the Ferro Family Trust and minor Jason C. (Jason), through his guardian ad litem Kathryn Magruder, upon the grant of respondents' motion for summary judgment. Appellants contend that: (1) the doctrine of primary assumption of risk is inapplicable to the water sport activity at issue in this case; (2) respondents failed to carry their burden of establishing that, due to the nature of the activity and the parties' relationship to it, they owed no duty of care to appellants; and (3) state and federal statutes governing the operation of personal watercraft — specifically, Harbors and Navigation Code sections 655, subdivision (a), 655.7, and 658.51 — are inconsistent with and supersede the common law doctrine of assumption of risk as applied to the activities at issue in this case. Appellants' contentions are at odds with the record and case authority to the contrary. We conclude that the recreational use of the Sea-Doo is a sport activity to which the primary assumption of risk doctrine is applicable, irrespective of the statutes cited by appellants. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The accident at issue in this case involved the use of two Sea-Doo personal watercraft. A Sea-Doo is similar to a jet ski in its operation, differing only in that it is equipped with a seat similar to that of a motorcycle upon which the operator generally sits rather than stands. Respondent Ferro owned a model XP Sea-Doo; his mother, respondent Julie Ferro, owned a model GTI Sea-Doo. The model XP was a two-person vehicle, had approximately 110 horsepower, and could go 60 to 65 miles per hour. The model GTI was larger, could seat three people, and had a smaller engine with 90 horsepower that could go 50 to 55 miles per hour. The Ferros kept the two Sea-Doos at their vacation residence at Clear Lake in Lake County. Ferro himself had "[q]uite frequently" instructed guests in how to operate the Sea-Doos.

On July 10, 2000, appellant Peart and his cousin, respondent Jason, were visiting at Ferro's Clear Lake residence. At the time, Peart and Jason were 16 and 13 years old, respectively. Peart told Ferro that although he had never operated a sit-down Sea-Doo before, he had previously used stand-up jet skis by himself, and therefore had experience with that kind of personal watercraft. Jason told Ferro he had ridden on a sit-down Sea-Doo before, and had taken a boating class through Boy or Cub scouts. Ferro did not ask Jason if he had ever operated a Sea-Doo by himself.

Peart and Jason wanted to ride the Sea-Doos. When Jason asked his mother if he could, she told him to ask Ferro. According to Jason, Ferro said: "They are not toys; they are for just to have fun on, not to fool around on." He agreed that the two boys could ride, and explained to them how to operate the Sea-Doos. Among other things, Ferro told Peart to wear the key on a bracelet, how to use the key to start the Sea-Doo, and how to make turns. He also told Peart and Jason always to wear safety jackets. Aside from telling the boys about the 5-miles-per-hour zone extending approximately 100 feet from the dock to the buoys, Ferro did not discuss the speed at which they should travel on the lake, the route to follow, or how long to stay out.

Ferro knew that an individual had to be at least 16 years of age in order legally to operate a Sea-Doo alone, and minors 12 years and older were only permitted to operate a Sea-Doo when accompanied by an adult. Consequently, he allowed Peart to operate one of the two Sea-Doos. However, when Jason went to the dock as though to drive the other one, Ferro said, "[o]h, sorry, you can't drive alone," and volunteered to accompany him. Ferro, Peart and Jason were all wearing life vests.

At approximately 3:00 p.m., Peart departed from the dock on one of the Sea-Doos. Ferro observed that Peart was going under 5 miles per hour up until he reached the buoys. Within a minute, Ferro and Jason left the dock on the other Sea-Doo, with Jason driving and Ferro behind him as passenger. At first, Jason followed the same direction that Peart had taken. Once they passed the limits of the five-miles-per-hour zone, Jason accelerated to approximately 35 miles per hour.

For a while, Peart drove his Sea-Doo around the lake, accelerating and making turns. Respondents Jason and Ferro simply maintained a straight course without turning. After a while, Peart began to cut back and forth across the wake of the Sea-Doo driven by Jason and Ferro, coming less than 100 feet behind them. Feeling that Peart was "cutting it a little close," Ferro tried to signal to Peart to "push off a little further" from them. Peart maneuvered his Sea-Doo about 200 feet away and alongside Ferro and Jason. Then, as Jason and Ferro maintained a speed of approximately 30 miles per hour, Peart accelerated to approximately 45 to 50 miles per hour and pulled directly in front of them, again about 200 feet away. Ferro saw Peart start to make a complete turn, first moving to the right and then veering sharply to the left and directly across their path. Peart "sort of disappeared behind [a] wall of water" caused by the 180-degree turn. When Peart reappeared almost immediately thereafter, he was directly in front of them and only 75 feet away. Ferro told Jason to "[t]urn." Less than 2 seconds later, the Sea-Doo they were riding collided with Peart's Sea-Doo.

In deposition testimony, Peart said he had decided to make a U-turn and go back to the dock. As he slowed down and started to make his turn, the Sea-Doo he was operating stalled or "shut off." Peart tried unsuccessfully to restart the engine. The next thing he knew, he was waking up in the hospital.

When the police came to investigate the accident, Ferro told them that just before the accident, he had grabbed the handlebars of the Sea-Doo and tried to help Jason turn it to avoid colliding with Peart. In deposition, Ferro acknowledged that "the truth was that I didn't do that and probably couldn't have done it." Ferro testified that he made this false statement because he was trying to be protective of Jason, who was very distraught at the time and blaming himself for the accident.

On March 14, 2001, appellants filed their complaint against respondents Ferro, Julie Ferro, the Ferro Family Trust, and "DOES 1 through 20," alleging that Peart had been seriously and permanently injured, and had incurred substantial and ongoing costs and expenses for medical care and treatment, "[a]s a direct and legal result of the carelessness and negligence" of respondents "and each of them." The complaint did not cite any provision of the Harbors and Navigation Code, made no reference to any statutory duty, and did not allege any cause of action based thereon. Neither did the complaint make any reference to or allegation of recklessness or intentionality on the part of any of the respondents.2

On May 10, 2001, respondents Ferro, Julie Ferro and the Ferro Family Trust filed an answer, asserting among other things the affirmative defense of assumption of risk. Respondent Jason filed an identical answer on October 10, 2001, after being served as Doe 1. On January 15, 2002, all the respondents filed a motion for summary judgment on the ground that the affirmative defense of assumption of risk acted as a complete bar to all of appellants' claims. On February 20, 2002, appellants filed opposition to the motion for summary judgment, arguing among other things that riding a Sea-Doo in a public venue was not an activity subject to the doctrine of assumption of risk; respondents were not entitled to summary judgment because there were disputed factual issues as to whether they had violated several allegedly applicable statutory duties; there were material disputed issues of fact with regard to whether respondent Ferro was subject to an additional duty not to increase the risk of harm to appellant Peart because he was instructing minor Jason in the operation of the Sea-Doo; and the primary assumption of risk doctrine had been "supplant [ed]" by a higher and independent standard of care created by the legislative enactment of sections 655, subdivision (a), 655.3, 655.7 and 658.5.

The motion for summary judgment was heard on March 15, 2002. Appellants did not offer any evidence of legislative intent with respect to the alleged statutory duties cited in their opposition to the motion for summary judgment.

On March 29, 2002, the trial court entered an order granting respondents' motion for summary judgment, on the basis of undisputed evidence showing that appellants' action was barred in its entirety and as a matter of law by the doctrine of...

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