Westlye v. Look Sports, Inc.

Decision Date23 August 1993
Docket NumberNo. C013447,C013447
Citation17 Cal.App.4th 1715,22 Cal.Rptr.2d 781
CourtCalifornia Court of Appeals Court of Appeals
PartiesBrad C. WESTLYE, Plaintiff and Appellant, v. LOOK SPORTS, INC., et al., Defendants and Respondents.

Philip A. Olsen and Charles G. Kinney, San Francisco, for plaintiff and appellant.

Hancock, Rothert & Bunshoft, Paul S. Rosenlund, Paul E. Fagan, Mark D. Tokunaga and Carin C. Duryee, San Francisco, for defendants and respondents.

SIMS, Associate Justice.

Plaintiff Brad C. Westlye fell while snow skiing and was injured, allegedly due to defective ski equipment rented from defendant Klein's Ski Shop ("Klein's") and distributed by defendants Look Sports, Inc., Look U.S.A., Inc., and Nordica U.S.A., Inc. ("the distributor defendants"). 1 Plaintiff filed suit alleging claims of strict products liability, negligence, breach of warranty, breach of contract, misrepresentation, and fraudulent concealment. The trial court granted defendants' motion for summary adjudication on all causes of action except fraudulent concealment, concluding that the claims were barred by a written agreement in which plaintiff accepted the equipment "as is" and expressly assumed the risk of injury. Following trial on the fraudulent concealment claim, plaintiff appeals from the judgment, challenging only the trial court's determination of the summary adjudication motion. We will conclude, among other things, that the written agreement does not bar plaintiff's recovery under a theory of strict products liability in tort. We shall therefore reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was injured when he fell while skiing at Sugar Bowl ski resort, and the left safety binding failed to release the ski from the boot. Plaintiff had rented the ski equipment from Klein's, which had purchased the equipment from the distributors.

The first amended complaint alleged the following causes of action:

1. Strict products liability--based on defective product--against all defendants;

2. Negligence in the design, manufacture, and distribution of the equipment, against all defendants;

3. Negligence in the mounting, maintenance, service, and adjusting of the safety bindings, against Klein's;

4. Breach of express warranties that the binding would release when necessary to prevent injury, against all defendants;

5. Breach of implied warranty that the binding would release when necessary, against all defendants;

6. Breach of contract against Klein's for failing to adjust the binding so it would release when necessary;

7. False representation against the distributor defendants for advertising the bindings as safe;

8. Negligent misrepresentation against the distributor defendants;

9. Intentional misrepresentation against the distributor defendants; and

10. Fraudulent concealment against all defendants for concealing from the public the fact the bindings do not release in all circumstances where release is necessary to prevent injury.

Plaintiff also sought punitive damages.

Defendants filed an answer which included the following affirmative defenses: (1) plaintiff assumed the risk of injury; and (2) plaintiff signed a written agreement expressly releasing defendants from any and all liability with respect to the use of the ski bindings. 2 The release was contained in the rental agreement between plaintiff and Klein's. A copy of the agreement signed by plaintiff is attached as Appendix A. In it, plaintiff (1) accepted the equipment for use "as is"; (2) agreed he understood bindings "will not release under ALL circumstances and are no guarantee for the user's safety"; (3) acknowledged there is "an inherent risk of injury in the sport of skiing, and the use of any ski equipment, and expressly assume[d] the risks for any damages to any persons or property resulting from the use of this equipment"; and (4) agreed to hold Klein's harmless and release Klein's from any and all responsibility or liability for damage and injury "whether resulting from the negligence (active or passive/past, present or future) or whether resulting from the selection, inspection or adjustment of this equipment (active or passive/past, present or future) by [Klein's] and/or its employees or whether resulting from the use of this equipment by the user."

In January 1992, defendants jointly moved for summary judgment or summary adjudication of each cause of action as having no merit. Defendants' motion relied heavily upon the written agreement. 3

Defendants' motion submitted, and plaintiff in his opposition agreed, that the following facts were undisputed: (1) plaintiff was injured while skiing; (2) he fell and was hurt while using ski equipment rented from Klein's; (3) the accident occurred when plaintiff was skiing down a run, turned to avoid another skier, could not negotiate the turn, and fell because the snow was icy; (4) plaintiff read and signed both sides of the ski rental agreement; (5) the language of the rental agreement was as represented by defendants; and (6) plaintiff was employed as an insurance broker at the time of the accident.

Defendants' motion also made the following assertions, which plaintiff disputed in his opposition: (1) the language of the rental agreement was clear and unambiguous; (2) plaintiff did not rely on any representations or warranties allegedly made by the distributor defendants with regard to the ski bindings; (3) Klein's did not represent or warrant that the bindings would release under all circumstances or would guarantee plaintiff's safety; and (4) the only person plaintiff spoke with at Klein's concerning the signing of the agreement was a clerk behind the rental counter upstairs.

Plaintiff's opposition to the motion also claimed there were three disputed issues: (1) The bindings were defective; (2) the release did not include or apply to the distributor defendants; and (3) the release did not include or apply to strict products liability for consumer product defects.

In February 1992, the trial court denied the motion for summary judgment because it concluded a triable issue of fact existed with respect to the tenth cause of action for fraudulent concealment (and punitive damages), in that the claim by its nature involved matters unknown to plaintiff at the time he signed the agreement and therefore could not be barred by the release provision. The court granted summary adjudication in favor of defendants on the other nine causes of action.

The court concluded the claims against Klein's were barred by the written agreement signed by plaintiff. As stated by the court in its amended order, "That agreement releases Klein from all liability. The agreement also contains express language by which the plaintiff acknowledged the inherent risk of skiing and assumed the risk of injury. Finally, the agreement acknowledges that plaintiff accepted the equipment 'as is' and understood that the bindings would not release in all circumstances."

As to the distributor defendants, the court concluded the claims for strict liability, negligence, and breach of implied warranty were "barred by the language of the rental agreement regarding plaintiff's assumption of risk, acknowledgement of the inherent risks of skiing, and acceptance of the equipment 'as is.' The express warranty and misrepresentation causes of action are barred because the only express statements relied on by plaintiff were those of Klein's [ ], not those of the remaining defendants."

In March 1992, the parties proceeded to a court trial on the fraudulent concealment claim. The trial court granted a defense motion for judgment (Code Civ.Proc., § 631.8).

Judgment in favor of defendants was entered on April 7, 1992. Plaintiff appeals from the judgment, challenging only the trial court's decision summarily adjudicating the nine causes of action in defendants' favor.

DISCUSSION
I. Standard of Review

In order to establish entitlement to summary adjudication of a cause of action, the moving party defendant must establish that the cause of action is without merit by negating an essential element or by establishing a complete defense. (Code Civ.Proc., § 437c [hereafter § 437c], subd. (f); City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21, 2 Cal.Rptr.2d 826.) 4 A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. (§ 437c, subd. (f); Haskell v. Carli (1987) 195 Cal.App.3d 124, 130, 240 Cal.Rptr. 439.) On appeal, our review is de novo. (§ 437c; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1513, 285 Cal.Rptr. 385.)

As will appear, both sides attempt to inject new facts on appeal. We disregard all asserted facts that were not presented to the trial court during the motion proceedings. (See Torres v. Reardon (1992) 3 Cal.App.4th 831, 836, 5 Cal.Rptr.2d 52; Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 361, fn. 1, 212 Cal.Rptr. 395.)

II. The Rental Agreement

We will begin with the causes of action assertedly affected by the written rental agreement signed by plaintiff--strict products liability, negligence, breach of warranty, and breach of contract. We will then separately address the misrepresentation claims.

In interpreting this written instrument, we conduct a de novo review and make a determination in accordance with applicable principles of law. (Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 146-147, 277 Cal.Rptr. 887.)

A. Inapplicability to Distributor Defendants

We first consider plaintiff's contention that the written agreement cannot be construed to benefit the distributor defendants, because the agreement was between Klein's and him and did not even mention the distributor defendants. Plaintiff contends it was error for the trial court to grant summary adjudication to the distributor defendants on the basis of the written agreement. 5...

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