Record v. Reason

• Decision Date: 12 July 1999
• Docket Number: No. B115201,B115201
• Citation: 73 Cal.App.4th 472,86 Cal.Rptr.2d 547
• Court: California Court of Appeals Court of Appeals
• Parties: , 1999 A.M.C. 2380, 99 Cal. Daily Op. Serv. 5562, 1999 Daily Journal D.A.R. 7051 Michael Guy RECORD, Plaintiff and Appellant, v. Brian REASON, Defendant and Respondent.

Page 547

86 Cal.Rptr.2d 547

73 Cal.App.4th 472, 1999 A.M.C. 2380,

99 Cal. Daily Op. Serv. 5562,

1999 Daily Journal D.A.R. 7051

Michael Guy RECORD, Plaintiff and Appellant, v. Brian REASON, Defendant and Respondent.

No. B115201.

Court of Appeal, Second District, Division 4, California.

July 12, 1999.

Weilbacher & Weilbacher and William John Weilbacher, Jr., Ventura, Plaintiff and Appellant.

Horvitz & Levy, Sandra J. Smith; Early, Maslach, Price & Baukol, Kenneth A. Casebier; and Elizabeth Skorcz Anthony, Encino, for Defendant and Respondent.

CURRY, J.

Appellant Michael Guy Record was injured falling off an inner tube while being towed behind a motor boat driven by respondent Brian Reason. The trial court concluded that appellant's claim was subject to primary assumption of risk and granted summary judgment in favor of respondent. At the same time, the court denied appellant permission to amend the complaint to assert a cause of action for reckless or intentional behavior. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 1994, appellant accompanied respondent, Patrick Lynch, and Robbi Perron for a day of water-skiing and "tubing"--riding an inner tube towed by a motor boat--at Castaic Lake, using a tube owned by respondent and a motor boat jointly owned by respondent, Lynch, and Brian Heberling who was not present. During that afternoon, appellant began a tube ride while respondent was driving. Lynch and Perron were seated in the back of the boat acting as "spotters" to watch appellant and, if he fell off the tube, notify respondent and raise a red flag to inform other boaters that someone was in the water. As respondent was turning the boat to the left, appellant spilled from the tube. He sustained a spinal injury requiring surgery and continues to suffer from head, neck, and back pain.

In April of 1995, appellant filed a complaint for personal injuries. He alleged that "[respondent] ... while negligently operating the ski boat on Castaic Lake, swung the [appellant] who was being towed on an inner tube supplied by [respondent], causing great velocity and a whipping sensation, thereby resulting in the hereinafter stated injuries." The complaint further alleged that "as a direct and proximate result of the negligence, carelessness, recklessness and unlawful conduct of the Defendants, and each of them," appellant was injured and suffered medical expenses.

Respondent's Motion for Summary Judgment

Respondent moved for summary judgment in January of 1997. In his moving papers, respondent sought to establish the following facts: "[Appellant] had preexisting injuries involving the same part of the body [appellant] claims were injured in this instant incident ... "; "[appellant] willingly participated in water tubing/skiing with [respondent] towing him [on the relevant day] on Castaic Lake"; "[respondent] assumed the risks inherent to water tubing/skiing including injury from falling off the innertube"; "[respondent] operated his ski boat at the time of the subject incident in a manner inherent to the sport of water tubing/skiing and within the safety guidelines of the sport of water tubing/skiing"; "[t]here was no action or factor attributed to [respondent] which falls outside the range of the ordinary activities involved in the sport of water tubing/skiing which caused and/or contributed to [appellant's] fall which is the subject of this lawsuit"; "[respondent] did not consumed [sic ] any alcoholic beverages or any other substance which would have impaired his ability to safely operate his ski boat on June 18, 1994"; and "[appellant] had fallen off the innertube twice, without incident, prior to the fall which is the subject of this lawsuit."

To establish appellant's assumption of risk, respondent submitted the following specific evidence: appellant's deposition testimony in which he characterized falling out of an inner tube as "[a] common occurrence" In support of the facts concerning respondent's operation of the boat within the guidelines of the sport of tubing and the range of ordinary activity inherent in the sport, respondent offered the following specific evidence: excerpts from his own deposition testimony indicating that he had no alcohol on the day he was operating the boat, that he read the safety instructions for the tube, that the boat was traveling 15 to 25 miles per hour at the time of appellant's injury, and that he made a gradual left turn; the tube's written instructions specifying the maximum towing speed for adult tube riders to be 25 miles per hour; evidence that Lynch and Perron served as "spotters" in accordance with the tube's instructions; and appellant's statement in his deposition testimony that respondent was towing him in the middle of the lake away from the shore.

appellant's deposition testimony that in his experience of tubing, "[s]ome people will turn the boat rapidly to get the inner tuber to go much quicker to increase the thrill of the ride. And some people would just tow behind the boat casually just for simple pleasure"; and Lynch's deposition testimony that appellant had said, " 'I'll be fine on the tube,' " in response to respondent's and Lynch's concerns about appellant riding on the tube.

Appellant's Opposition

Appellant filed an opposition to the motion for summary judgment, ¹ providing excerpts from depositions and declarations disputing that he had assumed the risk and that respondent's manner of operating the boat was within the guidelines and range of activity inherent to tubing. Specifically, appellant submitted respondent's deposition testimony showing that he knew of appellant's previous neck injury. Appellant testified at his deposition he told respondent "to go slow and take it easy" and "[k]ick back, [be]cause I don't want to get hurt."

Robbi Perron testified in a declaration that at the time of the incident, the boat's speedometer read 30 miles per hour and respondent "was making a sharp left turn." She estimated that the tow line was at least 70 feet long. Perron also recalled a conversation that day between respondent and Lynch on the boat about a game the two were playing where the object was "to try and knock one another off the tube using speed and momentum of the boat." She denied that appellant had fallen off the tube twice before on the day of the incident.

Appellant had said in his deposition testimony that "when [respondent] made the three quarter turn to come around, the inner tube was ripped out from underneath me." Also according to appellant's deposition testimony, "[Lynch's] exact words [after the incident] were, 'You were going way too "F'n" fast.' Or, 'You were going "F'n" fast.' He made comments that I looked like a rag doll bouncing across the water."

Glen Egstrom, an expert in underwater kinesiology hired by appellant, stated in his declaration: "Pursuant to accepted standards of safety practiced within the recreational sport of tubing, it is up to the boat driver to use judgment and skill in maintaining safe boat speed and reasonable maneuvers, as well as safe towable speeds. The rider on the towable is virtually at the mercy of the boat driver since the driver can literally sling the tube out to the side of the boat by simply making a turn of the boat."

Egstrom stated that he was "familiar with instructions for various towable devices" and that the particular instructions for the specific type tube involved in the accident provided, " 'Never exceed 25 mph when towing adults or 15 mph when towing children.' " He believed that "[m]ost towable inflatable tubes in the last ten years have carried the recommendations to Egstrom also observed: "The rider of the towable device is exposed to significant amounts of centrifugal force during any boat turn which slings the towable outside the wake of the boat. This force increases as the speed of the towable increases. Sharp turns result in especially rapid accelerations and can result in the towable attaining speeds and positions relative to the boat that develop slack in the tow line. This situation can be dangerous since the boat may pull the slack out of the line and jerk the towable with enough force to spill the rider." In this regard, Egstrom believed that "[a] well-experienced boat operator such as [respondent] would know that the towed device is reactive to the towing maneuvers of the boat at all times the boat is underway."

keep speeds under 20 mph., use a 50-foot tow line and to avoid slingshot type maneuvers that produce high speeds." ²

The Trial Court's Ruling

The trial court granted summary judgment, on the ground that there was "no triable issue of fact as to primary assumption of risk...." The court concluded tubing qualifies as a sport subject to primary assumption of risk because, "[a tube rider is] a lot like a water skier with differences." The court reasoned, "[tube riders] want to whip around a bit and feel like [they're] water skiing. And [if they] don't have the talent to water ski, you know, and maybe this is a lot of fun. I guess, that's why people do it. But then [the tube rider is] no longer a passenger on the boat, [but] ... on some little thing being whipped around on the wakes." The court decided no triable issue of recklessness existed so as to eliminate respondent's primary assumption of risk defense because, "even if [the court] chose to accept your facts that the guy is driving five miles an hour more. I think that it wouldn't take it out of the [Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696] case, if Knight applies."

Appellant's Motion to Amend the Complaint

Appellant moved for leave to amend his complaint to be heard at the same time as the summary judgment motion. Appellant's counsel stated in a declaration in support of the motion to amend that during the course of pretrial discovery "it was discovered ... that [appellant] had asked [respondent] to please drive the boat slowly so that [appellant] would...