Whelihan v. Espinoza

• Decision Date: 01 August 2003
• Docket Number: No. C042145.,C042145.
• Citation: 2 Cal.Rptr.3d 883,110 Cal.App.4th 1566
• Parties: Lisa WHELIHAN, Plaintiff and Appellant, v. David ESPINOZA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

2 Cal.Rptr.3d 883

110 Cal.App.4th 1566

Lisa WHELIHAN, Plaintiff and Appellant, v. David ESPINOZA, Defendant and Respondent.

No. C042145.

Court of Appeal, Third District.

August 1, 2003.

Review Denied November 12, 2003.

Robert J. DiLorenzo, Nevada City, for Plaintiff and Appellant.

Chapman, Popik & White, Susan M. Popik, Carol D. Quackenbos, San Francisco, Renee C. Callantine; Neil Olson & Associates and Neil E. Olson for Defendant and Respondent.

SCOTLAND, P.J.

Plaintiff Lisa Whelihan sued defendant David Espinoza for damages that plaintiff sustained in a jet ski accident. The trial court ruled that the primary assumption of risk doctrine barred plaintiffs claims and, thus, entered summary judgment in favor of defendant.

On appeal, plaintiff contends the judgment must be reversed because, in her view, assumption of risk does not apply under the circumstances of this case and there are triable issues of material fact regarding defendant's liability. Plaintiffs primary argument is that, by enacting statutes addressing the safe operation of jet skis (Harb. & Nav.Code, §§ 655, subd (a), 655.7, subd. (c)), the Legislature has abrogated application of the common law doctrine of primary assumption of risk to the sport of jet skiing. We disagree.

As we will explain, jet skiing is an active sport involving physical skill and challenges that pose a significant risk of injury to participants in the sport. The absence of the common law doctrine of primary assumption of risk would chill vigorous participation in jet skiing, thereby having a "deleterious effect" on the nature of the sport as a whole. (See Ford v. Gouin (1992) 3 Cal.4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.) Consequently, the enactment of sections 655, subdivision (a), and 655.7, subdivision (c), of the Harbors and Navigation Code should not be construed to abrogate the common law primary assumption of risk doctrine unless the statutory language explicitly shows a "clear intent" to do so. No such intent appears in the wording of the statutes. Accordingly, we conclude that they do not displace application of primary assumption of risk to the sport of jet skiing.

Finding no merit in plaintiffs other arguments, we shall affirm the judgment against her.

FACTUAL AND PROCEDURAL BACKGROUND

Two days after plaintiff and defendant purchased jet skis, they used them together at Lake Engelbright in Nevada County. Consistent with his description of the essence of the sport, defendant drove his jet ski at "a relatively high rate of speed" while making turns and maneuvers in "relatively close proximity" to plaintiffs jet ski. The jet skis collided when plaintiff made a left turn in front of defendant.¹

Plaintiff sued defendant for negligence and for negligent infliction of emotional distress, alleging that he "negligently, carelessly and with a conscious disregard for the safety and protection of the Plaintiff ... owned, operated, maintained and controlled [his] jet ski, so as to cause a collision, causing severe and permanent physical injuries to Plaintiff...."

Plaintiff amended the complaint to add, as the third, fourth and fifth causes of action, claims for breach of an agreement to divide mortgage payments on their shared residence and for intentional and negligent emotional distress inflicted during her recuperation from the jet ski injuries.

Defendant moved for summary judgment or, in the alternative, for summary adjudication of the first and second causes of action directly related to the jet ski accident. He also moved for judgment on the pleadings as to the fourth and fifth causes of action.

While the summary judgment motion was pending, plaintiff sought leave to file a second amended complaint, replacing the third cause of action (breach of agreement to divide mortgage payments on their shared residence) with a claim that defendant operated his jet ski in violation of section 655, subdivision (a), and section 655.7, subdivision (c), of the Harbors and Navigation Code.

Plaintiff explained that "[t]he instant amendments, adding violations of California Harbors and Navigation Code §§ 655(a) and 655.7(c) do not change the character of these negligence causes of action, but only that the negligence of defendant, as pled in the First Amended Complaint, is also a violation of the California Harbors and Navigation Code. We are not pleading an entire new theory such as reckless, willful and wanton conduct, only that the same duty of care as pled in the First Cause of Action is also stated in the statutes. [¶] This works no prejudice upon defendant since the standard of care pled and the standard of care in the statutes is the same." (Italics added.) In a declaration signed under penalty of perjury, plaintiffs counsel reiterated: "Since both the First Cause of Action and the new proposed Third Cause of Action deal with negligent conduct of the defendant in operating a jet ski, this works no prejudice or hardship on defendant." (Italics added.) Consistent with plaintiffs claim that she was not pleading a new theory of relief, neither party supplemented the separate statements with facts pertaining to the new third cause of action.

The trial court granted plaintiffs request for leave to file the second amended complaint, but the court granted defendant's motion for judgment on the pleadings as to the fourth and fifth causes of action (intentional and negligent emotional distress inflicted during plaintiffs recuperation from her injuries). The court also granted defendant's motion for summary judgment as to other causes of action, ruling that the doctrine of primary assumption of risk was "a complete and final bar to all three causes of action." Judgment was entered accordingly in favor of defendant.

DISCUSSION

I

Plaintiffs appellate brief addresses only the trial court's entry of summary judgment in defendant's favor on the three causes of action directly related to the jet ski accident. She contends that, for various reasons, the doctrine of assumption of risk does not apply under the circumstances of this case and there are triable issues of material fact regarding defendant's liability. Hence, she argues, the court erred in granting the summary judgment motion.

A.

We begin our analysis by summarizing several principles that govern the grant and review of summary judgment motions under Code of Civil Procedure section 437c (hereafter section 437c).

The trial court shall grant a motion for summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) A defendant seeking summary judgment "has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the [plaintiffs] cause of action ... cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (§ 437c, subd. (p)(2).)

"`The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' [Citations.] The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiffs cause of action. [Citation.]" (FPI Development Inc. v. Nakashima (1991) 231 Cal. App.3d 367, 381, 282 Cal.Rptr. 508.)

On appeal from entry of summary judgment, we conduct "a de novo examination of the record to determine whether the moving party was entitled to summary judgment as a matter of law or whether genuine issues of material fact remain." (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 826, 89 Cal.Rptr.2d 519.)

The question whether the primary assumption of risk doctrine applies, and therefore whether a duty of care exists, is a legal question to be decided by the court. (Record v. Reason (1999) 73 Cal.App.4th 472, 479, 86 Cal.Rptr.2d 547.) "`[W]e determine de novo the existence and scope of the duty....' [Citation.]" (Ibid.)

B

Under general principles of negligence law, "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." (Knight v. Jewett (1992) 3 Cal.4th 296, 315, 11 Cal. Rptr.2d 2, 834 P.2d 696.) However, under the doctrine of primary assumption of risk, "`plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him....' [Citations.]" (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824-825, 119 Cal.Rptr. 858, 532 P.2d 1226.) The doctrine "embodies a legal conclusion that there is `no duty' on the part of the defendant to protect the plaintiff from a particular risk." (Knight v. Jewett, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

The assumption of risk doctrine applies to a particular sports activity "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." (Record v. Reason, supra, 73 Cal.App.4th at p. 482, 86 Cal.Rptr.2d 547; cf. Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 794, 112 Cal.Rptr.2d 217 ["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"].)

As a matter of common knowledge, jet skiing is an active sport involving physical skill and challenges that pose a significant risk of injury, particularly when it is done—as it often is—together with other jet skiers in order to add to the exhilaration of the sport by racing, jumping the wakes of the other jet skis or nearby boats, or in other respects making the sporting activity more...