Shannon v. Rhodes

• Decision Date: 01 October 2001
• Docket Number: No. F035671.,F035671.
• Citation: 92 Cal.App.4th 792,112 Cal.Rptr.2d 217
• Court: California Court of Appeals Court of Appeals
• Parties: Haley SHANNON, a Minor, etc., et al., Plaintiffs and Appellants, v. Phillip RHODES, Defendant and Respondent.

112 Cal.Rptr.2d 217

92 Cal.App.4th 792

Haley SHANNON, a Minor, etc., et al., Plaintiffs and Appellants, v. Phillip RHODES, Defendant and Respondent.

No. F035671.

Court of Appeal, Fifth District.

October 1, 2001.

Certified for Partial Publication.^*

Law Offices of Douglas L. Hurt and Douglas L. Hurt, for Plaintiffs and Appellants.

Oswald & Yap, Michael A. Oswald, Irvine, and Mark D. Holmes, for Defendant and Respondent.

OPINION

ARDAIZ, P.J.

In this case we consider the application of Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight), to the recreational activity of boating. A minor child and her siblings brought a negligence claim against the owner and operator of a ski boat for damages arising out of her fall from the ski boat and the subsequent near amputation of her arm by the boat's propeller. The victim, six-year-old Haley Shannon, and her siblings, Samantha Shannon and John Shields, by and through their mother as guardian ad litem, Connie Shannon, appeal from the trial court's grant of summary judgment in favor of the boat's driver, respondent Phillip Rhodes. Appellants contend the trial court erred in concluding that their claims were barred by the doctrine of primary assumption of risk. In the published portion of this opinion we conclude the doctrine of primary assumption of risk does not apply to bar the negligence claim of a passenger in a boat simply being used to ride around on a lake. In the unpublished portion of this opinion we hold that respondent's motion for summary judgment failed to shift the burden of proof to appellants on the issue of causation. We therefore reverse the grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

The basic facts are undisputed. On August 27, 1997, Rhodes took the Shannons¹ out on Lake Kaweah. Rhodes had owned the boat for just a few days. While out on the lake, Rhodes was driving when six-year-old Haley fell out of the boat. Haley's mother, Connie, attempted to grab Haley as she fell overboard but was unsuccessful. Haley fell in the water and was apparently run over or somehow hit by the boat's propeller, resulting in severe injuries to her arm. Haley was transported to a hospital and ultimately brought this suit.

On June 3, 1999, the Shannons filed a complaint against Rhodes alleging general negligence. The Shannons contend, among other things, that Rhodes negligently failed to make sure his passengers were properly seated before accelerating the boat.² The complaint alleged, in pertinent part:

"Mr. Rhodes operated his motor-boat in a negligent manner, causing Haley Shannon to be thrown over board and seriosly [sic] injured by the boat propeller.

"Haley's brother, John Shields, and sister, Samantha Shannon, were present and witnessed the serious injury to Haley, and as a result suffered severe emotional distress."

Rhodes answered the complaint June 29, 1999, asserting the defense of assumption of risk, and filed a motion for summary judgment on January 27, 2000. Rhodes's motion contended the doctrine of primary assumption of risk barred the Shannons' claims, and, alternatively, Rhodes attempted to disprove causation and sought summary adjudication on the separate issue of whether Haley's siblings could prove a claim for emotional distress. The Shannons timely opposed the motion, arguing primary assumption of risk did not apply and that there were disputed questions of fact regarding causation and emotional distress damages. After announcing its tentative decision to grant the motion for summary judgment, the trial court heard argument on March 1, 2000. The court issued its order on March 1, 2000, granting the motion on the grounds that Rhodes owed Haley no duty of care because the doctrine of primary assumption of risk applied. Rhodes filed and served an amended judgment April 12, 2000. The Shannons timely appeal.

DISCUSSION

I DID RHODES OWE HALEY A DUTY OF CARE?

A. Standard of Review

A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiffs cause of action cannot be established, or (2) "that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (o)(2).) "[T]he defendant has the initial burden to show that undisputed facts support each element of the affirmative defense." (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858, 62 Cal.Rptr.2d 16.) The application of the affirmative defense of primary assumption of risk requires a legal conclusion that "by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury." (Knight, supra, 3 Cal.4th at p. 314-315, 11 Cal. Rptr.2d 2, 834 P.2d 696.) Thus, the existence and scope of a defendant's duty of care is determined by the court, and determination of the elements upon which the basis for the duty depends must be resolved as a matter of law by the court. Issues of law are reviewed by this court de novo. (Staten v. Superior Court (1996) 45 Cal.App.4th 1628,1635, 53 Cal.Rptr.2d 657; Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 385, 243 Cal.Rptr. 627 ["The issue whether a duty exists is a question of law to be determined by the court, and is reviewable de novo."].) Accordingly, like the trial court, we analyze the nature of the boating activity engaged in here and both Rhodes's and Haley's relationship to that activity in order to determine whether, "as a matter of public policy, the defendant should owe the plaintiffs a duty of care." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 541, 34 Cal.Rptr.2d 630, 882 P.2d 347.)

B. The Nature of the Activity

Appellants contend that the trial court erred because the primary assumption of risk doctrine should not apply to bar the claim of a passenger in a ski boat being used for a ride around a lake. Appellants argue that a passenger riding in a boat simply is not engaged in the type of activity the Knight court intended to reach with the doctrine of primary assumption of risk. Respondent contends that recreational boating is a "sport" within the meaning of Knight. We conclude appellant has the better view.

Generally, of course, "persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ.Code § 1714.)" (Knight, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Knight altered this general rule as it applies to a sports setting. The parties do not dispute these basic principles, but diverge in their reading of Knight, and cases interpreting Knight, on whether a passenger in a ski boat is participating in a "sport or recreational activity" intended to be covered by the doctrine of primary assumption of risk.

Our analysis begins by examining with what activity the Knight court was concerned. In Knight, the court came to the commonsense conclusion that when two people are playing a sport together one should not be liable to the other for injuries sustained while playing that sport absent some recklessness or intentional misconduct. (Knight, supra, 3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The parties in Knight were engaged in a recreational game of football, clearly a physical activity and "sport" within any common understanding of the word.

In a companion case to Knight, Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal. Rptr.2d 30, 834 P.2d 724 (Ford), the court expanded the rule slightly and applied it to the non-competitive, non-team, sporting activity of waterskiing. Subsequent cases have applied the doctrine to a variety of sports and activities. (See Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551, 553, 68 Cal.Rptr.2d 58 [applying primary assumption of risk to sportfishing after noting "[h]ooking and catching fish require a great deal of knowledge, physical skill and attention"]; Ferrari v. Grand Canyon Domes (1995) 32 Cal.App.4th 248, 256, 38 Cal.Rptr.2d 65 [doctrine applies to river rafting, recognizing "[I]t is the thrill of challenging nature and running the rapids without mishap .... [that] sets it apart from, for example, a trip down the giant slide at Waterworld"]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1205, 14 Cal. Rptr.2d 670 [applying doctrine to sailboating where plaintiff was one of the crew operating the sails and recognizing that sailing involves swinging booms and physical participation of crew]; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328, 21 Cal.Rptr.2d 178 [recreational dancing not subject to the doctrine because it is simply not "`a potentially dangerous activity or sport.'"].) While each of these cases had to examine the question of "what is a sport" on some level, it was not until seven years after our Supreme Court decided Knight that a court created a working definition for "sport" for purposes of the application of primary assumption of risk.

1. Record v. Reason

In Record v. Reason (1999) 73 Cal. App.4th 472, 86 Cal.Rptr.2d 547 (Record), the Second District explicitly considered the issue of whether a particular activity was a "sport" such that primary assumption of risk should apply to bar plaintiffs negligence claim. In Record the court considered the activity of "tubing" behind a motorboat. After extensively reviewing cases applying primary assumption of risk to a variety of activities, the court generally surmised that "[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of `sport' if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury." (Id. at p. 482, 86 Cal.Rptr.2d 547.) The court concluded that holding on to a tube being pulled behind a boat involved "[combining centrifugal force with a white-knuckled grip" and therefore fell within the meaning of "sport....