Staten v. Superior Court

• Decision Date: 31 May 1996
• Docket Number: No. A071307,A071307
• Citation: 45 Cal.App.4th 1628,53 Cal.Rptr.2d 657
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3928, 96 Daily Journal D.A.R. 6364 Mary STATEN et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent; Marie BAFUS et al., Real Parties in Interest.

Page 657

53 Cal.Rptr.2d 657

45 Cal.App.4th 1628, 96 Cal. Daily Op. Serv. 3928,

96 Daily Journal D.A.R. 6364

Mary STATEN et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent Marie BAFUS et al., Real Parties in Interest.

No. A071307.

Court of Appeal, First District, Division 5, California.

May 31, 1996.

Rehearing Denied June 24, 1996.

Review Denied Aug. 21, 1996. ^*

Dean M. Robinson, Stephen G. Castronova, Low, Ball & Lynch, Jan T. Chilton, Michael B. Murphy, David A. Ericksen and Severson & Werson, San Francisco, for petitioners.

No appearance for respondent.

Lawrence D. Murray, Murray & Associates, San Francisco, for real parties in interest.

KING, Associate Justice.

In this case we apply Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 to the sport of figure skating. We conclude that being cut by the blade of another skater during a group skating session is an inherent risk of the sport. The injured skater cannot recover for personal injuries under the doctrine of primary assumption of risk.

Petitioners are the various defendants in a personal injury action brought by real party in interest, plaintiff Marie Bafus, who was cut on the arm when she collided with another figure skater, petitioner Mary Staten. Petitioners moved for summary judgment on the ground that Knight barred real party's recovery. The superior court denied the motion, and petitioners seek writ review. Having issued an order to show cause in lieu of an alternative writ and heard oral argument, we issue the peremptory writ of mandate to compel the superior court to grant summary judgment in petitioners' favor.

I. FACTS

Real party in interest Marie Bafus is an experienced and accomplished amateur figure skater. She began skating when she was three or four years old and has skated competitively since the age of eleven. Bafus, who was 16 at the time of the accident giving rise to this litigation, aspired to Olympic competition or a career with the Ice Capades. She knew that skate blades were sharp, and that falls and collisions with other skaters were among the risks of figure skating. She knew skating carried with it a risk of personal injury.

Bafus practiced at Berkeley Iceland, a skating rink owned by East Bay Iceland, Inc. She was a member of the St. Moritz Skating Club, which rented the rink at specified times when the rink would exclude the public and allow only the club members to skate.

During one of the skating club's practice sessions, at which there were about 10 skaters skating freestyle around the ice for a 45-minute period, defendant Mary Staten, also a club member and aspiring figure skater, was practicing an "outward backward spiral." This maneuver required Staten to skate backwards on the ice with one leg extended and roughly parallel to the ice. While skating backward Staten collided with Bafus, who was in a stationary position practicing 360 degree spins. Bafus instinctively raised her arm when she saw Staten coming, and was cut on the arm by the blade of Staten's elevated skate.

Bafus sued Staten; her parents, John and Katrina Staten; the St. Moritz Skating Club; and East Bay Iceland, Inc. The defendants moved for summary judgment on the ground of primary assumption of risk. ¹ The trial court denied the motion, specifically ruling there was a triable issue of material fact on the question whether such an injury as suffered by the plaintiff was an inherent risk in figure skating. In reaching its ruling the trial court, over defense objection, relied on the declaration of an expert figure skater, who stated his opinion that being cut by the blade of a skater performing a backward spiral is not an inherent risk of the sport. The expert opined: "a backward spiral[ ] requires the use of care to look in the direction that one is going to travel, before the travel begins, to make sure that the ice is free of objects such as walls, etc., including people. The failure to do so is negligent on the part of the skater." ²

II. DISCUSSION

Motivated by a desire to clarify the law of assumption of risk in California, the Supreme Court decided Knight and its companion case, Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724. Although neither opinion commanded a clear majority of the court, Knight has become the operative statement of current California law. ³ Knight distinguished between cases of primary assumption of risk, in which a defendant owes no duty to protect the plaintiff from a particular risk of harm, and cases of secondary assumption of risk, in which the defendant does owe a duty of care but the plaintiff knowingly encounters the risk. (Knight v. Jewett, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In the latter situation, liability is apportioned by comparative fault. (Id. at p. 310, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In the former, the lack of a duty of care operates as a complete bar to recovery, without regard to whether the plaintiff's conduct was reasonable or unreasonable, and without regard to the plaintiff's subjective awareness or understanding of the potential risk. (Id. at pp. 309-310, 314-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Generally, the participation in an active sport is governed by primary assumption of risk, and a defendant owes no duty of care to protect a plaintiff against risks inherent in the sport. (Id. at pp. 315-316, 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In a given active sport setting, the question whether the defendant owes a duty to the plaintiff "is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury. [Citation.] Thus, the question of assumption of risk is much more amenable to resolution by summary judgment under a duty analysis ...." (Id. at p. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Thus, under Knight a trial court is to determine the question of duty as a function of the scope and definition of a given active sport's inherent risks.

In many active sport cases, this principal determination of the question of duty leads to a second duty analysis. Although a defendant owes no duty to protect against the risks inherent in a sport, the defendant generally owes a duty not to increase the risks of the activity beyond the risks inherent in the sport. (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) This second determination of duty, however, still hinges upon the trial court's determination of the question of duty in the first instance, by defining the risks inherent in the sport at issue.

In the present case, we must determine whether being cut by the blade of a fellow skater during a group skating session is, as a matter of law, a risk inherent in the sport of figure skating. Bafus, however, would have us put down our pen at this point, on the theory that Knight does not even apply. Bafus claims that Knight applies only to contact sports, and not to what she designates "solo" figure skating. We must observe that Bafus' adoption of the phrase "solo figure skating" is a semantic trick: if Bafus had been skating alone, she would never have been injured at all. Bafus was skating a practice session with a number of other skaters, all engaged in bettering themselves in an active sporting activity, and whose proximity to one another created certain risks of collision. ⁴

It is well settled that Knight applies to so-called non-contact competitive sports, as well as contact team sports such as football or baseball. (See, e.g., Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 45 Cal.Rptr.2d 855 [snow skiing]; Ford v. Gouin, supra, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 [water skiing]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 14 Cal.Rptr.2d 670 [sailing]; Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 33 Cal.Rptr.2d 777 [discus throwing].)

Knight itself suggests, in passing, that skating should be covered by its doctrine of primary assumption of risk. (Knight v. Jewett, supra, 3 Cal.4th at [45 Cal.App.4th 1634] p. 319, 320, fn. 7, 11 Cal.Rptr.2d 2, 834 P.2d 696.) It also cites with approval the Minnesota case of Moe v. Steenberg (1966) 275 Minn. 448, 147 N.W.2d 587, which held that collisions with other skaters were an inherent risk in ice-skating. (147 N.W.2d at p. 589, citing Schamel v. St. Louis Arena Corp. (Mo.Ct.App.1959) 324 S.W.2d 375, 378 [collisions with other skaters an inherent risk of roller skating].) The plaintiff in Moe was held to have assumed the risk "that anyone skating backwards, whose vision and control were momentarily impaired, would constitute a special hazard" which the plaintiff should have anticipated. (Ibid.; accord, Annot., Liability of Ice Skater For Injury to Another Skater, 33 A.L.R.3d 316.) If figure skating may be analogized to snow skiing, another sport in which one acts alone and "teamless" but in the proximity of others also so engaged, the skiing cases uniformly hold that one skier assumes the risk of collision with another. (See O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193, 35 Cal.Rptr.2d 467; Annot., Skier's Liability for Injuries to or death of Another Person, 24 A.L.R.3d 1447 [concluding, relying in part on McDaniel v. Dowell (1962) 210 Cal.App.2d 26, 26 Cal.Rptr. 140, that colliding with another skier is an inherent risk of the sport].)

We thus agree with petitioners that collisions with other skaters in group skating sessions, and the injuries that may result therefrom, are inherent risks of the sport of figure skating. ⁵ Bafus insists, however, that being cut by the blade of a backward-moving skater is not an inherent risk of the sport. Bafus contends that Staten had a duty to check that her route was clear before she began her backward spiral. Bafus relies heavily on Yancey v. Superior Court, supra, which held that a discus...