Wolf v. Weber

• Decision Date: 17 July 2020
• Docket Number: A157937
• Citation: 266 Cal.Rptr.3d 104,52 Cal.App.5th 406
• Court: California Court of Appeals Court of Appeals
• Parties: Diane WOLF, Plaintiff and Appellant, v. Alexander WEBER, Defendant and Respondent.

52 Cal.App.5th 406

266 Cal.Rptr.3d 104

Diane WOLF, Plaintiff and Appellant,

v.Alexander WEBER, Defendant and Respondent.

A157937

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

Filed July 17, 2020

Bold, Polisner, Maddow, Nelson & Judson, Craig L. Judson, J. Kevin Moore, Sharon M. Nagle, Walnut Creek, and Kimberly LK. Moore, for Appellant

Cholakian & Associates, Kevin K. Cholakian, South San Francisco, Mika J. Frisk; Hayes, Scott, Bonino, Ellingson, Guslani, Simonson & Clause, LLP, Mark G. Bonino, and Emma B. Lloyd

TUCHER, J.

Plaintiff Diane Wolf suffered injuries after defendant Alexander Weber's dog allegedly collided with her on a hiking trail where dogs are allowed off leash under the control of their owners. The question before us is whether her personal injury action is barred by the doctrine of primary assumption of risk. The trial court granted defendant summary judgment on this basis. We conclude primary assumption of risk does not apply to the circumstances before us, and accordingly reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Many of the facts in this case are undisputed. On October 6, 2016, Wolf and her husband were walking with their dog, Maury, on Wildcat Gorge Trail in Tilden Regional Park, part of the East Bay Regional Park District (the Park District). Dogs are allowed off leash in this area of the park, but only if they are under their owners' control. (East Bay Regional Park District Ordinance 38, section 801.3 (section 801.3).) Weber was walking on the same trail with his dog Luigi, a "larger" Argentinian Mastiff-Boxer mix, and a colleague, Martin Cenek. Both Luigi and Maury were off leash. Wolf knew dogs were allowed off leash on this trail and expected other dogs would play with each other, but maintains Maury did not play with other dogs.

The two parties were toward the end of the trail. Weber and his party were walking more than 70 feet ahead of Wolf's party. At some point, Luigi began to lag behind Weber and Cenek. Then, unbeknownst to Weber and Cenek, Luigi wandered towards Wolf's party. Weber and Cenek realized Luigi was absent when they heard Wolf yell that she was afraid. They turned around and saw Luigi approaching Wolf's party. Attempting to get Luigi to return, Weber told Luigi to sit, but Luigi did not comply. Weber called for Luigi several times, and Luigi began to return to Weber after the second or third command. Around the same time, Wolf turned away from Luigi out of fear. She felt something strike her in the back of her right knee and fell to the ground, dislocating her ankle and breaking two bones in her leg. Neither Wolf nor her husband witnessed what caused her fall.

There is some uncertainty about the exact circumstances of Wolf's fall. According to Weber, the dogs were "starting to play" with each other and running in "circles." As Luigi was returning to Weber, Maury "intercepted" Luigi, causing Luigi to trip, roll over, and hit the ground. At the same time, Wolf fell to the ground. Weber did not see what caused Wolf to fall, but assumed the fall was caused by Luigi colliding with her. Cenek's version of events was similar; according to him, the dogs "tumbled over each other" and collided with Wolf. He could not tell which dog made contact with Wolf because they both rolled together into her. Plaintiff does not directly dispute either account, except to maintain that Maury did not play with other dogs.

Weber was interviewed by a Park District police officer who came to the scene. He admitted that Luigi was not under perfect control, that Luigi should have been under his control, and that Luigi was still being trained. The officer did not issue Weber a citation.

Wolf sued Weber for personal injury, alleging causes of action for negligence and negligence per se. Wolf alleged Weber breached his duty of care "by failing to leash or otherwise control Luigi in order to ensure the dog's safe and proper behavior on the trail." The negligence per se action contended Weber violated section 801.3 by failing to keep his dog under control.

Weber moved for summary judgment based on the affirmative defense of primary assumption of risk. The trial court granted the motion, concluding that the primary assumption of risk doctrine applied to off-leash hiking trails and that Wolf assumed the inherent risk of "being bumped by a dog running back to its owner or tumbling over another dog" by hiking on the trail. The court also rejected Wolf's negligence per se claim, reasoning section 801.3 did not abrogate the primary assumption of risk doctrine. It accordingly entered judgment for Weber.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate "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." ( Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a defendant must present evidence that either "conclusively negate[s] an element of the plaintiff's cause of action" or "show[s] that the plaintiff does not possess, and cannot reasonably obtain," evidence needed to establish an element of the claim. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853–854, 107 Cal.Rptr.2d 841, 24 P.3d 493.) If the defendant meets this burden, "the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." ( Code Civ. Proc., § 437c, subd. (p)(2).)

We review an order granting summary judgment de novo, considering the record before the trial court independently. ( Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal.Rptr.2d 366, 939 P.2d 766.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ( Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037, 32 Cal.Rptr.3d 436, 116 P.3d 1123 ( Yanowitz ).) "We affirm the trial court's decision if it is correct on any ground the parties had an adequate opportunity to address in the trial court, regardless of the reasons the trial court gave." ( Jameson v. Pacific Gas & Electric Co. (2017) 16 Cal.App.5th 901, 909, 225 Cal.Rptr.3d 171.)

II. Primary Assumption of Risk Doctrine

In order to establish a cause of action for negligence, a plaintiff must show that the defendant owed her a legal duty of care. ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477, 110 Cal.Rptr.2d 370, 28 P.3d 116.) Duty is a question of law to be decided by the court and is often " ‘amenable to resolution by summary judgment.’ " ( Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004, 4 Cal.Rptr.3d 103, 75 P.3d 30 ( Kahn ).) In most circumstances, a person owes a duty of care not to cause an unreasonable risk of harm to others. ( Civ. Code, § 1714, subd. (a).) However, the primary assumption of risk doctrine creates an exception to this rule. ( Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068, 68 Cal.Rptr.2d 859, 946 P.2d 817.)

Under the primary assumption of risk doctrine, a person does not owe a duty to protect others from risks inherent in certain recreational activities. ( Knight v. Jewett (1992) 3 Cal.4th 296, 315–317, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Because some activities are inherently dangerous, "[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation." ( Kahn , supra , 31 Cal.4th at p. 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30.) "The primary assumption of risk doctrine ... developed to avoid such a chilling effect." ( Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, 150 Cal.Rptr.3d 551, 290 P.3d 1158 ( Nalwa ).)

Primary assumption of risk has often been applied in the context of active sports, but the doctrine also applies to other recreational activities that " ‘involv[e] an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.’ " ( Nalwa , supra , 55 Cal.4th at pp. 1155–1156, 150 Cal.Rptr.3d 551, 290 P.3d 1158.) "Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity." ( Id. at p. 1154, 150 Cal.Rptr.3d 551, 290 P.3d 1158, italics omitted.) Coparticipants must not intentionally or recklessly injure other participants ( Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 499–500, 194 Cal.Rptr.3d 830 ( Griffin )), but the doctrine is a complete defense to a claim of negligence ( Foltz v. Johnson (2017) 16 Cal.App.5th 647, 655, 224 Cal.Rptr.3d 506 ). However, recovery for injuries caused by risks not inherent in the activity is not barred by the doctrine. ( Swigart v. Bruno (2017) 13 Cal.App.5th 529, 538, 220 Cal.Rptr.3d 556 ( Swigart ).)

Courts are empowered to decide which risks are inherent in an activity. ( Griffin , supra , 242 Cal.App.4th at p. 504, 194 Cal.Rptr.3d 830.) Our Supreme Court has explained that "[j]udges deciding inherent risk questions ... may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment." ( Nalwa , supra , 55 Cal.4th at p. 1158, 150 Cal.Rptr.3d 551, 290 P.3d 1158 ; see also Swigart , supra , 13 Cal.App.5th at p. 539, 220 Cal.Rptr.3d 556 ["[i]n determining whether a risk is inherent in an activity, we consider ‘the record and common sense’ "].) Using this approach, courts have held that primary assumption of risk bars claims involving a range of recreational activities: riding in a bumper car at an amusement park ( Nalwa , supra , 55 Cal.4th at pp. 1157–1158, 150 Cal.Rptr.3d 551, 290 P.3d 1158 ), falling into the remains of a burning effigy at the Burning Man festival ( ...