Duty of care for a Massachusetts campground is to warn of dangerous conditions.

Plaintiff assumes the risk of his injury at a commercial campground if there is not dangerous condition and/or he knows about the condition because he walks the trail during the day.

Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

State: Massachusetts, Appeals Court of Massachusetts

Plaintiff: Anthony Monaco

Defendant: Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground

Plaintiff Claims: negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place

Defendant Defenses: Assumption of the Risk

Holding: for the defendant

Year: 2014

This case involves a commercial campground. The plaintiff was walking up to the restroom at night and fell on the path. He sued for his injuries. The plaintiff sued the campground and others who were never clearly identified in the appellate decision.

The lower court stated the plaintiff assumed the risk based upon the defendant’s motion for summary judgment, and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The court first reviewed the requirements for a negligence suit to succeed under Massachusetts law and condensed the four steps to one sentence. “To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages.” The duty of care is only owed to those who are foreseeably endangered by the contact with the defendant.

Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.

The duty of a land owner in Massachusetts is that of reasonable care “under all the circumstances in the maintenance and operation of their property.”

Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. That is, an open and obvious danger negates the existence of a duty of care.

The fact that the plaintiff was injured does not create a legal obligation or duty on the part of the defendant. Evidence is needed to support the lack of care or proof the landowner k of the dangerous condition.

…evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards.

The plaintiff had descended the hill earlier and had not seen a dangerous condition. In fact, the plaintiff had been using the campground for eighteen years and had used the path three times the day he fell.

Nor had a dangerous condition on the hillside been identified or spotted during the camps annual inspection.

Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.

The court held the defendants owed not duty to protect the plaintiff from the conditions on the pathway.

So Now What?

The requirement that a landowner is not obligated to consistently and constantly check for dangerous conditions is not found in all states. In most states if the dangerous condition exists, the landowner must fix it or warn of it.

The obligations or duties owed to people on your land are usually based upon the reasons why the injured person was originally upon your land. In Massachusetts that issue is not discussed.

Here the obligation was to warn or correct dangerous conditions. It did not matter why the person was on the land.

What do you think? Leave a comment.

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Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

Anthony Monaco vs. Vacation Camp Resorts International, Inc., & another.1

1 Jayne Cohen.

14-P-141

APPEALS COURT OF MASSACHUSETTS

86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

December 18, 2014, Entered

NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL’S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.

PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

DISPOSITION: [*1] Judgment affirmed.

CORE TERMS: pathway, campground, landowners, summary judgment, favorable, allowance, obvious danger, duty of care, citation omitted, unreasonably dangerous, obstructions, deposition, anticipate, precautions, unexpected, invitees, uneven, slope, fault, owe, shower, paved, path, owed

JUDGES: Cypher, Fecteau & Massing, JJ.

OPINION

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Anthony Monaco seeks to recover for serious injuries he sustained when he fell down a grassy hill that campers used to reach a shower building located on Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground in New Hampton, New Hampshire. The plaintiff alleges that VCRI and Jayne Cohen2 were negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place. A Superior Court judge allowed the defendants’ motion for summary judgment, reasoning that traversing the shortcut in lieu of existing paved pathways, and in darkness, is an “obvious baseline danger,” and that the defendants therefore owed no duty. We affirm.

2 Cohen served as president of Vacation Camp Resorts International, Inc., during the time of the incident in question.

3 Construing the record in the light most favorable to the plaintiff, and noting that the shower building was marked with a “restroom” sign visible from the paved road above, we accept the plaintiff’s characterization [*2] of the route between the road and the building as a pathway.

In reviewing the trial court judge’s allowance of a motion for summary judgment, we consider the evidence submitted with the motion, which may include “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232, 676 N.E.2d 801 (1997) (citation omitted). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). We construe inferences drawn from the record in the light most favorable to the nonmoving party, and review de novo the trial court judge’s application of the law to the facts. LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, 974 N.E.2d 34 (2012). Allowance of the motion will survive appellate review so long as there is “no genuine issue” of “material fact” and “the moving party is entitled to a judgment as a matter of law.” Id. at 325-326. Mass.R.Civ.P. 56(c).

To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages. Ronayne v. State, 137 N.H. 281, 284, 632 A.2d 1210 (1993).4 “[P]ersons owe a duty of care ‘only to those who they foreseeably endanger by their conduct.'” Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208 (1992) [*3] (citation omitted). “Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.” Id. at 305.

4 The trial court judge determined that New Hampshire’s substantive law governed this action. The parties do not dispute that the choice of New Hampshire law is appropriate under the circumstances of this case.

“[O]wners and occupiers of land owe plaintiffs a duty of reasonable care under all the circumstances in the maintenance and operation of their property.” Werne v. Exec. Women’s Golf Assn., 158 N.H. 373, 376, 969 A.2d 346 (2009). Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. See Pesaturo v. Kinne, 161 N.H. 550, 555, 20 A.3d 284 (2011). The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. Ibid. Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. Ct. 1986). That is, an open and obvious danger negates the [*4] existence of a duty of care. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 422, 807 A.2d 1274 (2002).

The mere fact that the plaintiff was injured does not trigger a legal duty on the defendants. He must produce some evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. Lawrence, 394 N.W.2d at 856. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards. However, other evidence revealed that the condition of the pathway, as it appeared to both parties, posed no greater risk than walkways maintained by landowners in their ordinary exercise of care. Cf. Paquette v. Joyce, 117 N.H. 832, 835, 379 A.2d 207 (1977). Monaco testified at his deposition that he was not aware of any treacherous condition as he was descending the hill, and Cohen never observed any “unexpected,” unreasonably dangerous condition, Ahern v. Amoskeag Mfg. Co., 75 N.H. 99, 101, 102, 71 A. 213 (1908), during her annual visual inspections of the campground. Thus, Monaco’s inattention to obvious dangers on the pathway was the only risk presented, which did not impose on the [*5] defendants a duty to exercise precautions. Contrast Hacking v. Belmont, 143 N.H. 546, 553, 736 A.2d 1229 (1999) (defendant liable for “unreasonably increased or concealed” risks not inherent in the game of basketball).

Moreover, “[t]here is nothing unfamiliar about the inability to perceive in the dark obstructions to the course of one who walks without light.” Ahern, supra at 101. That is, “[i]f there may be obstructions whose presence cannot be ascertained by the eye, due care requires the use of some other sense to detect them.” Ibid. When the evidence is “uncontradicted” that the plaintiff was familiar with the area where the accident occurred and that the injury occurred because of an “unexpected” condition, the defendant is not at fault for failing to anticipate it. Ibid. Unless the defendant had superior knowledge of the danger, “[i]t cannot reasonably be found that of two persons of equal knowledge and of equal ability to appreciate and understand a danger, one is in fault for not apprehending the danger and the other is not.” Id. at 102.

In this case, Monaco’s knowledge and appreciation of the condition of the pathway was equal to the defendants’. Monaco had camped on the campground once per [*6] year for eighteen years and had used the pathway three times without incident on the day of his fall. Likewise, VCRI had been operating the campground for over two decades, and Cohen was VCRI’s president for approximately six years. Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.

Conclusion. Drawing all inferences from the record in the light most favorable to the plaintiff, we conclude that the defendants owed no duty to protect him against the injury-causing condition of the pathway. The allowance of the defendants’ motion for summary judgment was proper.

Judgment affirmed.

By the Court (Cypher, Fecteau & Massing, JJ.5),

5 The panelists are listed in order of seniority.

Entered: December 18, 2014.


Assumption of the Risk to be a bar to a claim the defendant must not owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.

The old idea of you knew what you were doing could result in an injury, and you did it anyway does not necessarily prevent lawsuits now days.

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

State: California, Court of Appeal of California, Fourth Appellate District, Division Three

Plaintiff: Carl Kindrich, III, Barbara Kindrich, and Michael Kindrich

Defendant: Long Beach Yacht Club and Charles Fuller, skipper

Plaintiff Claims: negligent in their use and maintenance of both the boat and the dock, Barbara claimed loss of consortium, and Michael claimed emotional distress

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2008

The facts in this case are easy, and to regular readers, sort of annoying. The plaintiff’s father died. The deceased had been a member of the defendant yacht club and wanted to be buried at sea. The yacht club loaned a boat and a skipper to the deceased family to take his ashes out to sea.

Boarding the boat, there was a set of stairs that allowed everyone to climb on the boat. Upon returning the stairs were removed. The Defendant/Skipper/Boat Captain asked the plaintiff to jump down to tie the boat up. He did, injuring his knee.

Free boat to carry out his father’s wishes, knowing the risk, and he still sues. The plaintiff sued the Yacht Club and the skipper, both of whom were donated for disposing the ashes of the plaintiff’s father.

Analysis: making sense of the law based on these facts.

The defendant yacht club filed a motion to dismiss based on assumption of the risk. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

The court went through a detailed analysis of assumption of the risk in California. The basis of the analysis was the California Supreme Court decision in Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870.

The court first started by defining when assumption of the risk is applied as a complete bar and the differences between primary and secondary assumption of the risk.

Assumption of risk that is based upon the absence of a defendant’s duty of care is called “‘primary assumption of risk.’ ” “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.”

Primary assumption of the risk is a complete bar to a claim. “Primary assumption of risk, “where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense.”

The court stated that the decision in Knight changed how the court should view assumption of the risk. “Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question.”

In cases involving ‘primary assumption of risk’–where, 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–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule”

The old definition looked at whether the plaintiff knew about the risk and voluntarily assumed the risk. Now the court looks at what was going on to determine what happened. Even if the plaintiff did not understand the activity or the risks, by engaging in the activity, they may still assume the risks. This in many senses is a broader definition which helps the defendant. However, when the activity is not a sport, it is a very narrow definition.

The court then looked at all the California cases that had determined that the defendant did not owe a duty to the plaintiff; therefore, the assumption of the risk was a complete bar to the plaintiff’s claims. From that it determined that the complete bar applied if the plaintiff was participating in a sport.

After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded 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.”

Jumping off a boat is not a sport. It is a common everyday occurrence. As such the activity is not one where the plaintiff assumes the risk because the defendant might owe the plaintiff a duty. The existence of the stairs to begin the boat ride is proof that a duty may be owed. The case was reversed and sent back for further proceedings.

So Now What?

So I’ve posted a lot of cases looking at assumption of the risk. However, you need to make sure you understand that normally, assumption of the risk is not a complete bar to a lawsuit as in this case. For assumption of the risk to bar a plaintiff’s suit, the plaintiff must be involved in an activity or sport.

Here the plaintiff was jumping off a boat. Although the facts make it appear like the suit should be thrown out because when you jump from a boat, it is obvious you can be hurt. The rule states it only applies to how much the trier of fact thinks you were responsible for your injury not whether you assumed the risk as in the past.

Assumption of the risk may still be a complete bar to recovery. It will be dependent upon the state and how the jury sees the facts. However, that must be decided by the trier of fact, and cannot be decided by motions.

By that I mean if the plaintiff does not prove that the defendant was at least or 50 or 51% liable (dependent upon the state) for their injury the plaintiff loses. In some states, the percentage of the plaintiff’s fault only reduces the award to the plaintiff by that percentage the plaintiff is liable, so if the plaintiff is found to be 90% liable the plaintiff only recovers 10% of the damages.

The issue as to how assumption of the risk is to be applied to the facts is based on whether the defendant owed a duty to the plaintiff. In a sport, the defendant does not owe any duty unless the acts of the defendant are reckless or intentional, generally (varies by state). Here, the stairs that were there originally created a duty when they were removed.

The reasoning behind keeping assumption of the risk in some activities as a complete bar is, if the risks are removed from the sport, which the defendant would have to do if they were to protect themselves from suit, the sport would not exist. The risk is part and parcel of the sport. Alternatively, without the risks, the sport would not exist.

The controlling term is “sport”. It does not have to be a team sport or a contact sport, but it has to be more than couch surfing or jumping from a boat.

If you are engaging in the activity for a challenge, a thrill, or enjoyment and requires physical exertion, then assumption of the risk may be a complete bar to a claim by the plaintiff.

You could always put that in your release too………….. J

There is a dissent in this case that reasons that “No good deed goes unpunished” and the actions of the plaintiff fit the definition of assumption of the risk, and the older result should apply in this case.

How would they ever be able to tie the boat up if in this fact situation? If a passenger on the boat cannot jump off the boat to tie the boat up, the captain either has to hand over control of the boat to a passenger (see any problems here) or the boat must wait until someone comes down and brings a set of stairs.

Never thought I would write about a “Yacht Club.”

What do you think? Leave a comment.

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Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Carl Kindrich III et al., Plaintiffs and Appellants, v. Long Beach Yacht Club et al., Defendants and Respondents.

G038290

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE

167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

October 28, 2008, Filed

COUNSEL: Brunick, McElhaney & Beckett and Steven K. Beckett for Plaintiffs and Appellants.

Cogswell Nakazawa & Chang, Christina L. Owen and Dena S. Aghabeg for Defendants and Respondents.

JUDGES: Opinion by Rylaarsdam, J., with Sills, P. J., concurring. Dissenting opinion by Bedsworth, J.

OPINION BY: Rylaarsdam [*1255]

OPINION

[**825] RYLAARSDAM, J.–Plaintiff Carl Kindrich III was injured while disembarking from a boat after participating in casting his late father’s ashes [**826] into the ocean. He sued defendants Long Beach Yacht Club, the owner of the boat and the dock, and Charles Fuller, the boat’s skipper, alleging they had been negligent in their use and maintenance of both the boat and the dock–specifically because they failed either to have someone on the dock to assist in tying off the boat when it returned, or to ensure that the portable steps, previously used in boarding the boat, would be available for his use when he attempted to disembark. Carl’s wife, Barbara, and son, Michael, also sued. Barbara claimed loss of consortium, and Michael claimed emotional distress suffered as an aural percipient witness to his father’s injury. (Because [***2] all three plaintiffs have the same last name, we will refer to them by their first names to avoid confusion and not out of disrespect.)

The trial court granted summary judgment to defendants, reasoning the doctrine of primary assumption of risk applied to Carl’s decision to jump off the boat onto the dock. All plaintiffs appeal, contending the court improperly concluded that the act of jumping onto the dock was an activity subject to the complete defense of primary assumption of risk. We agree that the court’s analysis was incorrect. Carl was not engaged in the type of sporting event where the doctrine of primary assumption of risk should be applied. At most Carl may have assumed risks, categorized as secondary assumption of risk, which are subsumed in contributory negligence. Whether he was contributorily negligent and, if so, how his negligence compares with that of defendants, if any, are questions of fact to be resolved by the trier of fact.

Defendants also contend summary judgment was properly granted because they were not negligent. But this is another question of fact and not subject to summary judgment. Defendants’ additional issues, whether Barbara suffered damages and whether [***3] Michael’s awareness of his father’s accident qualifies him as a “bystander” entitled to recover on a theory of negligent infliction of emotional distress, also raise questions of fact.

We therefore reverse the summary judgment.

FACTS AND PROCEDURAL HISTORY

The complaint alleges that plaintiffs and some of their relatives and friends gathered at the Yacht Club to participate in a “burial at sea” of the ashes of Carl’s late father. The Yacht Club arranged for the attendees to be taken to the burial site on a boat it owned and maintained and assigned Fuller to pilot that boat. The Yacht Club provided portable stairs on the dock to assist the [*1256] attendees in boarding. Plaintiffs contend that, when the boat returned to the dock, the portable steps were no longer in place. According to the complaint, Fuller told Carl to tie off the boat; there was no one on the dock waiting to do so. As Carl “started to jump from the side of the boat onto the dock … , the boat and dock moved relative to each other causing [Carl] to fall and injure himself.”

Plaintiffs allege causes of action for Carl’s personal injury, Barbara’s loss of consortium, and emotional distress suffered by Michael when he witnessed [***4] his father’s accident.

Defendants moved for summary judgment. They argued that Carl’s claim failed as a matter of law because (1) he assumed any risk of injury from his voluntary decision to jump onto the dock from the boat; and (2) they did not breach any duty of care they might have owed him and had no actual or constructive notice that the portable stairs may not have been in place when the boat returned to the [**827] dock. They also asserted that Barbara’s claim failed as a matter of law, both because it was derivative of Carl’s claim and because her discovery responses revealed no loss of consortium damages. Finally, defendants maintained Michael’s claim failed as a matter of law because it was derivative of Carl’s and because Michael was not actually aware of his father’s injury until after it had occurred.

These are the relevant undisputed facts offered in support of the motion: Carl’s father, a member of the Yacht Club before he died, had expressed the wish to be “buried at sea.” The Yacht Club agreed to assist with such a burial and permitted the Kindrich family to use one of its boats, without charge, for the ceremony. The Yacht Club also agreed to let Fuller, one of its long-standing [***5] members and a good friend of Carl’s father, pilot the boat for the ceremony.

Carl, Barbara, and Michael, along with other family members, used portable steps located on the dock to board the boat for the ceremony. After the ceremony was over, Carl and Michael were up on the bridge with Fuller, who piloted the boat back to the dock. According to Carl’s testimony, “[a]fter the burial, we were bringing the boat in and … not too far from the dock, [Fuller] looked to me and says ‘We have to tie up the boat, and someone else will have to help.’ And Michael and I were the only two on the bridge … . And so Michael said that he would help … . [¶] … When [Fuller] turned the boat into the dock and we had gotten up to the dock and we were getting ready to get off the boat, Mike, my son, jumped to the dock. We didn’t see the steps. The steps weren’t there. And then after Mike jumped off, I jumped off, also … .” [*1257]

Carl stated that at the moment he jumped off the boat, it was hit by the wake from another boat, causing it to “go up as he stepped off the boat and when he came down onto the deck, he broke his leg.” The boat used for the burial ceremony does not require more than two [***6] people to tie it up when it reaches the dock–one person to operate the boat and one person on the dock to tie the lines.

Plaintiffs opposed the summary judgment, arguing this was not a proper case for applying the doctrine of primary assumption of the risk, and the case could not be summarily adjudicated on the basis that defendants acted with reasonable care as a matter of law. Plaintiffs argued there were numerous factual disputes relating to whether defendants satisfied the duty of care they owed to the passengers on their boat, and those issues must ultimately be resolved by a jury.

At the hearing, the court explained its initial thinking in favor of granting the summary judgment: “We have some conflicts in the facts as to whether he jumped, or stepped, or lowered himself, or whatever, but that doesn’t matter. What didn’t happen was he wasn’t pushed. He wasn’t ordered. He voluntarily undertook an activity that was inherently dangerous; namely, disembarking from a moving boat obviously onto the dock and he hurt himself. [¶] I believe that without really much hesitation that … primary assumption of the risk applies and the motions should be granted for summary judgment.”

Although [***7] plaintiffs’ counsel attempted to persuade the court that Fuller directed Carl to assist in tying up the boat, and thus his decision to jump from the boat should not be regarded as voluntary, the court did not agree. “[Carl] assumed the risk of something in this recreational activity going wrong. [¶] It did go wrong. The precise wrong is irrelevant. One way or the other he voluntarily disembarked the boat … with the idea of going onto [**828] the dock, and this was an unsafe thing to do.”

The formal order granting the motion cited two bases. First, the court found that “even if the portable steps were actually missing when the vessel … arrived back at dock after the burial at sea, [d]efendants had no notice, constructive or actual, of their absence. … [¶] The Court additionally finds that [d]efendants are entitled to summary adjudication on their Fourth Affirmative Defense because when [p]laintiff … made the deliberate and conscious decision to jump from the vessel … to the dock, he, with full knowledge thereof, knowingly and voluntarily assumed the risk of sustaining injury. (See Meintsma v. United States [(9th Cir. 1947)] 164 F.2d 976 … ; see also DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [46 Cal. Rptr. 2d 468] [***8] (‘[It] is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.’).)” [*1258]

The order granted summary judgment against Barbara and Michael as well, concluding Barbara’s claim for loss of consortium was derivative as a matter of law and that any distinct claim for emotional distress was precluded by the fact she did not actually witness Carl’s injury. As to Michael’s claim, the court concluded that a bystander’s recovery for extreme emotional distress was dependent upon a determination the injury he witnessed was negligently inflicted. Since Carl’s negligence claim failed, Michael’s did as well.

DISCUSSION

Primary Versus Secondary Assumption of Risk

(1) Even were we to conclude that Carl’s decision to jump off the boat was a voluntary one, and that therefore he assumed a risk inherent in doing so, this is not enough to provide a complete defense. [HN1] Because voluntary assumption of risk as a complete defense in a negligence action was abandoned in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal. Rptr. 858, 532 P.2d 1226], only the absence of duty owed a plaintiff under the doctrine of primary assumption of risk would provide such a defense. But that doctrine does not come [***9] into play except when a plaintiff and a defendant are engaged in certain types of activities, such as an “active sport.” That was not the case here; plaintiff was merely the passenger on a boat. Under Li, he may have been contributorily negligent but this would only go to reduce the amount of damages to which he is entitled.

Before Li, contributory negligence and voluntary assumption of risk were distinct and complete defenses in an action for negligence. Under certain circumstances, the “last clear chance” doctrine provided relief from the harshness of the rules. Li changed all that. It adopted the doctrine of comparative negligence and held that “[t]he [HN2] doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence; both of these are to be subsumed under the general process of assessing liability in proportion to negligence.” (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 829.)

Li recognized that there are at least two distinct forms of assumption of risk. “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory [***10] negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, [**829] plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence … . [*1259] Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citation.]” (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824-825.)

(2) So, [HN3] to the extent that “‘”a plaintiff unreasonably [***11] undertakes to encounter a specific known risk imposed by a defendant’s negligence,”‘” he or she is subject to the defense of comparative negligence but not to an absolute defense. (Knight v. Jewett (1992) 3 Cal.4th 296, 305-306 [11 Cal. Rptr. 2d 2, 834 P.2d 696].) This type of comparative negligence has been referred to as ” ‘secondary assumption of risk.’ ” (Id. at p. 308.) Assumption of risk that is based upon the absence of a defendant’s duty of care is called ” ‘primary assumption of risk.’ ” (Ibid.) “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.” (Id. at p. 309.)

Primary assumption [***12] of risk, “‘”where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”‘” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense. That defense was not fully developed until our Supreme Court decided Knight v. Jewett. There, Knight sued Jewett for negligence and assault and battery after she was injured when Jewett knocked her over and stepped on her finger during a touch football game. In affirming summary judgment for the defendant, the court held that under the doctrine of primary assumption of risk, the defendant did not owe the plaintiff a duty. It “conclude[d] that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.) [*1260]

(3) Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question. (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) [***13] [HN4] “In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the [**830] activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at pp. 314-315.) Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” (id. at p. 315), and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule” (id. at p. 319). The focus of the questions should consider the nature of the activity and the relationship of the parties to the activity. (Id. at p. 315.)

There are situations other than active sports where under the doctrine of primary assumption of risk a plaintiff is held to agree to relieve a defendant of an obligation of reasonable conduct toward him or her. For example, Knight stated, “In addition to the sports [***14] setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter’s rule.’ [Citation.] In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.] Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.” (Knight v. Jewett, supra, 3 Cal.4th at pp. 309-310, fn. 5.)

Other examples of primary assumption of risk are the so-called veterinarian’s rule (e.g., Priebe v. Nelson (2006) 39 Cal.4th 1112, 1121, fn. 1 [47 Cal. Rptr. 3d 553, 140 P.3d 848]) [***15] or where the plaintiff is hired to undertake a particular, dangerous job (e.g., Farnam v. State of California (2000) 84 Cal.App.4th 1448, 1455 [101 Cal. Rptr. 2d 642]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [53 Cal. Rptr. 2d 713]). But for purposes of this case, we need only consider whether Carl’s injuries occurred while he was engaged in an “active sport,” which relieved defendants of a duty of care. [*1261]

There are more than 100 published cases defining what is and what is not an “active sport” qualifying for application of the doctrine of primary assumption of risk. “Since the decision in Knight, which involved a recreational game of touch football, our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford[ v. Gouin (1992)] 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724], the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, nonteam sporting activity of waterskiing. The Supreme Court has applied the doctrine to other sports, including intercollegiate baseball (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [**831] [41 Cal. Rptr. 3d 299, 131 P.3d 383]), swimming (Kahn[ v. East Side Union High School Dist. (2003)] 31 Cal.4th [990,] 1004-1005 [4 Cal. Rptr. 3d 103, 75 P.3d 30] [***16] [examining coach’s relationship to sport]), and snow skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068 [68 Cal. Rptr. 2d 859, 946 P.2d 817] …). [Citation.] The Courts of Appeal have applied the primary assumption of the risk rule in cases involving snow skiing (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]), ‘off-roading’ with a motorcycle or ‘dune buggy’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1255, 1259-1265 [102 Cal. Rptr. 2d 813]), skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-117 [96 Cal. Rptr. 2d 394]), figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1636 [53 Cal. Rptr. 2d 657]), and long-distance group bicycle riding (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1218-1223 [130 Cal. Rptr. 2d 198]), to name a few.” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 878-879 [67 Cal. Rptr. 3d 675] [primary assumption of risk applied to bar action for injury to passenger on jet ski].)

In Record v. Reason (1999) 73 Cal.App.4th 472 [86 Cal. Rptr. 2d 547], the court held that where the plaintiff was injured when he fell off an inner tube while being towed behind a motor boat, primary assumption of risk applied. In doing so, the court considered the issue of whether a particular activity was a “sport” such that the doctrine should be applied. [***17] After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded 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.) Although we agree with the result in Record its reliance on a plaintiff’s subjective reasons for participating in a sport seems inconsistent with Knight‘s test, which focuses on whether imposing liability would “alter fundamentally the nature of the sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.) [*1262]

(4) Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1205 [14 Cal. Rptr. 2d 670] applied primary assumption of risk to sailing where the plaintiff was one of the crew operating the boat; the court noted that sailing involves swinging booms and physical participation of crew. But in our case, plaintiff was not a participant in the “sport” of boating or in any “active sport.” He was a passenger. Thus [HN5] this activity does not fall within [***18] the test set out in Knight, i.e., that to hold defendants owed no duty to plaintiffs would “alter fundamentally the nature of [a] sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.)

This case is more analogous to Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217]. There a six-year-old child and her siblings sued the owner and operator of a ski boat for negligence arising from injuries sustained by the child when she fell from the boat into the boat’s propeller. The Court of Appeal reversed summary judgment, holding that primary assumption of risk did not apply. The court noted, “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 [**832] absent some recklessness or intentional misconduct. [Citation.] 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.” (Id. at p. 796.) Shannon held that the defense did not apply where [***19] the plaintiff was merely a passenger in the ski boat. (Id. at p. 801.)

Shannon distinguished Ford v. Gouin, supra, 3 Cal.4th 339, the waterskiing case, by noting that in Ford, our Supreme Court “explicitly used the language ‘noncompetitive but active sports activity’ in applying the doctrine to waterskiing. [Citation.] A review of the reasoning set forth in Ford makes clear that the court focused on the physical skill and risk involved in the waterskiing itself to conclude that the activity of waterskiing was a sport, and the boat driver a coparticipant in that sport. [Citation.] The same certainly cannot be said of a mere passenger in a boat … .” (Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 798.)

(5) Here, the trial court characterized the activity in which plaintiff engaged as “jumping” rather than boating. We disagree that [HN6] we must surgically separate an activity’s constituent parts apart from the general activity in which the plaintiff was engaged. Carl was engaged in boating, not in jumping. If he had been a jumper, in the sense of one who competes in athletic events, our conclusion would be different. But he was disembarking from the boat; his method of doing so, be it leaping, jumping, stepping off, or walking the gangplank, [***20] did not turn his activity into an “active sport.” [*1263]

We therefore conclude that the doctrine of primary assumption of risk does not bar plaintiffs’ action.

Defendants’ Remaining Arguments

(6) We need not expend a great deal of time dealing with the rest of defendants’ arguments. Although these were not the basis for the grant of summary judgment, we will comment briefly. Defendants contend they acted with reasonable care. But this argument should be made not to us but to the trier of facts. [HN7] Whether reasonable care has been exercised is normally a question of fact. (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 656 [320 P.2d 500].) Even if defendants were not responsible for the removal of the steps, and they contend the steps were there, this would only be one possible theory of liability. And, in light of the conflicting evidence, it is not for us to decide whether the steps were removed and, if so, by whom.

(7) As to defendants’ argument that Carl’s wife, Barbara, did not sustain damages to support her loss of consortium claim, the contention rests on the absence of evidence of physical injuries. But, as plaintiffs point out, “[a]lthough [HN8] loss of consortium may have physical consequences, it is principally a form [***21] of mental suffering.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 401 [115 Cal. Rptr. 765, 525 P.2d 669].)

(8) Defendants’ final argument is equally specious. [HN9] Whether or not Carl’s son, Michael, had such a contemporaneous sensory awareness of the accident as to satisfy the requirements of Thing v. La Chusa (1989) 48 Cal.3d 644, 668-669 [257 Cal. Rptr. 865, 771 P.2d 814] is again a question of fact, not to be resolved by us.

DISPOSITION

The judgment is reversed. Appellants shall recover their costs.

Sills, P. J., concurred.

DISSENT BY: BEDSWORTH

DISSENT

BEDSWORTH, J., Dissenting.–“No good deed goes unpunished” has become a truism of modern life. Today, [**833] by allowing suit against a yacht club that tried to help one of the sons of a member in his time of grief, only to be sued when he hurt himself intruding into their conduct of the good deed, my colleagues give this sad commentary on modern society the force of law. I respectfully dissent from that.

Carl Kindrich III was injured when he jumped off a boat and onto a dock. He did so voluntarily, after he knew his adult son, Michael, had already [*1264] gotten onto the dock to assist in tying off the boat. There is absolutely no evidence that anyone suggested, let alone required, that Kindrich himself must get off the boat prior [***22] to the time the stairs were put into place on the dock for the egress of passengers. Nonetheless, Kindrich, along with his wife and son, sued both the Long Beach Yacht Club and Charles Fuller, the Yacht Club member who captained the boat, alleging they were responsible for his injuries.

The trial court granted summary judgment to defendants, and I would affirm that judgment. I believe the trial court properly concluded that Kindrich’s specific act of “jumping onto the dock,” rather than the more generic and sedate “boating” was the relevant “activity” for purposes of assessing his assumption of risk. In my view, jumping or stepping some two and one-half or three feet off the side of a boat onto a dock–merely because portable steps had not yet been put into place–is no more an integral part of “boating” than diving out a window–because no one has yet opened the door–is an integral part of visiting a house.

This was not an outing or an excursion. It was not a leisurely sail. The trip was made to dispose of the ashes of Kindrich’s father. The injury in question was not the result of “boating.” Kindrich was not swept off the boat by a wave or hit by a jib. He jumped off the [***23] boat at the conclusion of the trip before the boat had been tied up. His injury was the result of his sudden decision he would leap off the boat rather than waiting for his son to finish tying it off and ensuring debarkation could be safely accomplished.

It is undisputed that defendants did not expect, let alone require, that passengers would have to jump off this particular boat as part of the “boating” experience. To my mind, the existence of portable stairs, which had been used by these passengers when boarding the boat, and were intended to be kept on the dock for the passengers to use in both getting on and off the boat, rather conclusively establishes the lack of any such expectation. And Kindrich’s own testimony demonstrates that even he did not consider jumping off the side of the boat onto the dock to be a normal part of this boat ride, let alone an integral part of the activity of “boating” in general. As Kindrich explained it, he not only did not expect that anyone else on the boat would be jumping off, he believed them unable to do it. 1

1 As Kindrich explained in his deposition, “Jim, my brother, has a back to where he can’t do a lot of jumping; Mary Ann would not be capable [***24] of doing it; Lisa wouldn’t be capable of doing it; my grandsons would not be capable of doing it. And the other two gentlemen would not be capable of doing it.”

Moreover, there is no evidence that anyone–either Fuller or the Yacht Club–imposed some special obligation on Kindrich to jump off the boat and [*1265] be on the dock while it was being tied up. Instead, Kindrich’s own testimony establishes that (1) Fuller merely stated (either directly to Kindrich or generally to him and his son) that it was necessary to tie up the boat, and “someone else” would have to assist; (2) Kindrich’s son immediately volunteered to do that; and (3) Kindrich was aware his son [**834] had already jumped onto the dock for the purpose of tying off lines before his own ill-fated attempt to follow suit. Even assuming it was actually necessary for “someone” to be on the dock–a fact disputed below–it is uncontested that need had been met prior to Kindrich’s jump.

Under these facts, it is clear that jumping off the boat before the stairs were in place was not a requirement placed generally on those who were passengers on the boat, and it was not a requirement placed specifically on Kindrich by any defendant. 2 Hence, [***25] Kindrich’s decision to do so was simply an optional, and entirely voluntary act, which must be distinguished, for analytical purposes, from any normal aspect of “boating.”

2 Of course, I do not mean to suggest Kindrich necessarily thought through these events with the specificity I have just employed. Presumably, he just figured if Fuller needed help getting the boat tied onto the dock, he was willing to do whatever he could to assist. But that instinct is the essence of volunteerism: “Somebody ought to do it, might as well be me” is not the same thing as being specifically assigned a task. And the fact Fuller might even have appreciated having two people on the dock is not the same thing as concluding he actually directed Kindrich to get onto the dock–by whatever means possible–as soon as the boat arrived. Based upon the evidence in this case, the trial court correctly determined Kindrich was acting voluntarily when he jumped off the boat.

As my colleagues seem to concede, when Kindrich’s activity is construed not as an integral part of “boating” but rather as simply an impetuous act of “jumping off the boat,” it falls within the scope of “athletic” endeavors, which includes those [***26] noncompetitive activities requiring some level of “physical skill and risk,” and thus primary assumption of the risk would apply. (See Ford v. Gouin (1992) 3 Cal.4th 339, 345 [11 Cal. Rptr. 2d 30, 834 P.2d 724]; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 798 [112 Cal. Rptr. 2d 217].) Because I see it that way, I would apply that doctrine, and grant the summary judgment.

But I should also note that I disagree with the majority’s analysis for an additional reason. As they explain, they considered Kindrich’s situation to be more analogous to Shannon v. Rhodes, supra, 92 Cal.App.4th 792, in which the injured plaintiff, a six-year-old child, was merely a passenger when she fell out of a boat that lurched unexpectedly, than to Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670], in which the court applied primary assumption of the risk to a plaintiff who was injured while serving as a crewmember on a sailboat. If that is the analysis, it would lead me to the opposite conclusion. After all, a cornerstone of Kindrich’s theory of liability [*1266] is the assertion he had agreed to help with the docking of the boat, which is why–unlike the other passengers–he could not simply wait for the stairs to be put in place before getting onto the dock. If we accept [***27] his view, it seems clear that at the time of the accident, Kindrich had assumed the role of “crew,” rather than remaining a mere passenger. That would bring him within the majority’s characterization of Stimson. For that reason as well, I would affirm the judgment.

My colleagues have expanded civil liability beyond previous decisional law and beyond my ability to sign on. This ship will have to sail without me.

Respondents’ petition for review by the Supreme Court was denied February 11, 2009, S168902. Werdegar, J., did not participate therein.


Plaintiff in a ropes course injury (Nitro Swing) fails because she assumed the risk

It is wonderful when the court looks at the facts and says plainly, no way you are going to win a case because this is a stupid claim, and your expert is clueless.

Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Kathleen Sajkowski et al

Defendant: Young Men’s Christian Association of Greater New York

Plaintiff Claims: negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing

Defendant Defenses: Assumption of the Risk

Holding: For the defendant

Year: 2000

This case is written so clearly that most of this article will be quotes from the opinion.

The plaintiff participated in a Wellness for Life weekend put on by the defendant YMCA. One of the activities was a Nitro Swing. The court described the Nitro Swing as:

This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt.  Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Don’t you just love the first sentence! “This event involved nothing more than swinging from a rope.” It distilled the essence of the lawsuit and removed the marketing and hyperbole that clouds life and litigation now days.

While waiting for her turn the plaintiff saw several other participants lose their grip on the rope and fall. When she tried the Nitro Swing she also lost her grip on the rope and fell injuring her ankle.

The plaintiff sued. The trial court dismissed her lawsuit based on assumption of the risk, and the plaintiff appealed the decision.

Analysis: making sense of the law based on these facts.

The court said the plaintiff assumed the risk.

…by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it. Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks. Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant

Then the court states in very plain English:

It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several other participants fall just moments earlier.  Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable….

The plaintiff, then through the opinion of her expert witness tried to convince the court that the defendant should have padded the ground beneath the swing. The court did not really appreciate her expert’s opinion.

Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards.  Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity.

The reason was the expert used by the plaintiff dug up standards for gymnastics for children under 12.

In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

Then the court sort of slams the case closed.

She was only swinging from a rope with her body suspended just barely off the ground.  The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

As much as appellate courts are allowed to, the above paragraph is pretty much an “up yours” in legalese.

So Now What?

Sure, Always Use a Release, but in this case for this particular event, it did not matter.

This is a situation where no matter how stupid the claim or how valid the defenses; the plaintiff still gave rolled the dice hoping for a very sympathetic judge or an easy settlement. The defendant and their insurance company, thankfully, stood up to the stupid claims and fought them; probably to a greater cost than any settlement.

Even in outdoor recreation, you get bad lawsuits. Thankfully, this one was fought all the way rather than settled.

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Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Kathleen Sajkowski et al., Appellants, v. Young Men’s Christian Association of Greater New York, Respondent.

2180

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

February 1, 2000, Decided

February 1, 2000, Entered

COUNSEL: [***1] For Plaintiffs-Appellants: Charles H. Dobkin.

For Defendant-Respondent: Laura Getreu.

JUDGES: Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

OPINION

[*105] [**66] Order, Supreme Court, New York County (Lorraine Miller, J.), entered July 20, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The Young Men’s Christian Association of Greater New York (YMCA) sponsored a “Wellness for Life” weekend program for adults who wished to engage in exercise and outdoor activities. Among the activities [**67] that were offered at the program was an obstacle course that included an event called the Nitro Crossing. This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Plaintiff, Kathleen Sajkowski, an attendee [***2] at the weekend program, stood in line with several other participants and waited for her turn to swing on the rope. While she was waiting, she observed that several participants lost their grip and fell while swinging. When her turn came, she grasped the rope and began to swing. Approximately at the midway point of the imaginary pit, plaintiff lost her grip and fell, injuring her ankle. Plaintiff, alleging, inter alia, that defendant YMCA was negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing, commenced this action. No claim was made that the rope broke or was otherwise defective. Thereafter, defendant moved for summary judgment dismissing the complaint, asserting that plaintiff assumed the risk of participating in this activity. We conclude that the assumption of risk doctrine is applicable to plaintiff’s injury.

In Morgan v State of New York (90 NY2d 471, 484), the Court of Appeals reaffirmed the principle that, [HN1] “by engaging in a [*106] sport or recreational activity, a participant consents to those commonly [***3] appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it ( Maddox v City of New York, 66 NY2d 270, 277). Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks ( Morgan v State of New York, supra; see also, Turcotte v Fell, 68 NY2d 432, 439). Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant ( Simoneau v State of New York, 248 AD2d 865).

In considering plaintiff’s injury, it is apparent that the risk of falling while swinging from a rope is inherent in participation in such an activity (cf., Hofflich v Mendell, 235 AD2d 784; compare, Roska v Town of Cheektowaga, 251 AD2d 984). It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several [***4] other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable ( Maddox v City of New York, supra; see also, Sheridan v City of New York, 261 AD2d 528; Paone v County of Suffolk, 251 AD2d 563; Brown v City of New York, 251 AD2d 361; compare, Warren v Town of Hempstead, 246 AD2d 536 [defect concealed]; Cronson v Town of N. Hempstead, 245 AD2d 331).

Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards. Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity. These violations, it is asserted, exposed plaintiff to unreasonably enhanced risks, which she cannot be deemed to have assumed (see, Morgan v State of New York, supra, at 485; [***5] [**68] see also, Greenburg v Peekskill City School Dist., 255 AD2d 487; Clark v State of New York, 245 AD2d 413; Stackwick v Young Men’s Christian Assn., 242 AD2d 878). In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

[*107] What becomes apparent is that the comparison of the Nitro Crossing to a gymnastics event is incongruous. * Simply stated, plaintiff was not dismounting from uneven bars, or doing a tumbling routine during a floor exercise–activities completely different in degree, complexity, and danger from the activity at issue here. Nor was she engaged in an activity that required any specialized kind of training, instruction, or skill. She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built [***6] for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

* For the same reasons plaintiff’s claim that defendant should have provided a spotter is without merit. Moreover, since plaintiff immediately fell to the ground when she lost her grip on the rope, the presence of a spotter would not have prevented this accident.

We also note that the balance of the expert evidence failed to demonstrate that defendant violated any prevailing standards in constructing the Nitro Crossing (see, Simoneau v State of New York, supra; cf., Greenburg v Peekskill City School Dist., supra; Clark v State of New York, supra; Stackwick v Young Men’s Christian Assn., supra).

In view of the foregoing, Supreme Court properly granted defendant’s motion and dismissed the complaint.

Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.


If you have a manual, you have to follow it, if you have rules, you have to follow them, if you have procedures, you have to follow them, or you lose in court.

Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

Defendant with spin cycle class loses this lawsuit because they simply failed to follow their own rules and procedures. Consequently the plaintiff did not know or understand the risks of riding a spin bike and could not assume the risk.

State: New York, Supreme Court of New York, New York County

Plaintiff: Wolf Scheck and Lynn Scheck

Defendant: – Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the risk

Holding: for the plaintiff

Year: 2012

This is interesting because of how the defendant lost the case. The plaintiff and his wife wanted to try spin classes for fitness. They registered for a spin class not knowing how or what a spin class was. New people in the class were told to arrive 15 minutes early to have an introduction and training in the equipment and the class.

The plaintiff argues he was not properly instructed on the use of the equipment, and the dangers of the equipment were not readily apparent. Those dangers were increased by the defendant’s actions by not properly instructing the class and training the plaintiff.

It appears that the plaintiff arrived late, as his wife was already there. The information provided to the plaintiff was not as comprehensive as the information provided to the plaintiff’s wife.

A spin cycle is a fixed gear bicycle meaning the pedals do not coast but rotate once each side for every wheel rotation.

The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still and let the wheel spin. Just pushing with your feet to attempt to stop the wheel is futile “unless you have very strong legs.”

During the class, the defendant stood up when told and injured his knee. Beginners are normally told not to stand up in spin classes. The plaintiff sued for his knee injury. The defendant filed a motion for summary judgement based on assumption of the risk, which was denied leading to this decision.

Analysis: making sense of the law based on these facts.

The first mistake is the defendant had a release but did not have either the plaintiff or the plaintiff’s spouse sign one. The validity of the release might have been at issue because the defendants paid a fee for an exercise class which might trigger General Obligation Law § 5-326 voiding the release. See NY court explains how it interprets § 5-326, which disallows releases in NY. Upholds release for a marathon for more about how this statute bars some releases in New York.

The defendant failed to follow numerous requirements for the class which it had set out either in how it dealt with people or in a manual it created for this situation. Those requirements included the following:

·        The defendant employee adjusted the seat height for the plaintiff and showed him where the brake was, however, the employee did not know how to use the brake.

·        Instructions were given to the defendant’s spouse, but not the defendant on several safety issues.

Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.

·        Although they were requested to arrive 15 minutes early for training, the defendant’s employee only spent 2 minutes with them explaining the class and the spin cycle.

·        The instructors “…usually warn beginners not to get up out of the saddle. None of the defendant employees did give this warning to either defendant, and the plaintiff was injured when he stood up to pedal when the instructor told him too.

The defendant had a training manual to be used. The training manual required.

…instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.”

None of the items listed in the training manual were followed except for providing the plaintiff with free shoes.

Assumption of risk was defined according to New York law and how it was going to be applied in this situation. For assumption of risk to be effective, the risks cannot be increased. “A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks.” There is a duty on the dependent to make the conditions as safe possible. “Furthermore, the defendant has a duty to make the conditions as safe as they appear to be.”

The defendant’s duty, for the plaintiff to assume the risk, is measured against the risks known by the plaintiff. “…when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered.”

The court then pointed all the problems the defendant created by not instructing the new plaintiff in spinning. The court summed up its analysis of the failures of the defendant to instruct the plaintiff by pointing out the defendant had a manual that required the employees to do each thing the manual required “The Soul Cycle training manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.”

A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation”

The court also found that use of a gym or health club was not a sporting event which allows for increased risks to be assumed by the plaintiff and allows for the plaintiff to not fully understand some of the risks. A player in a sporting event assumes the risk of the game; including those he or she may not fully understand.

In this case, defendants have failed to prove, as a matter of law, that plaintiff assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals; the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the risks which he was subjected to. There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment.

The case was set for trial.

So Now What?

Remember that assumption of the risk is accepting a known risk. By not instructing the plaintiff properly before the class began, the plaintiff could not assume the risk because the plaintiff did not know the risk. The defendant knew the risks, and had rules that required them to inform the plaintiff of the risks.

This fact was emphasized by the court several times pointing out the defendant’s manual required something to be done, which was not done.  

If you write it down and call it a manual, plan, standard, rules or regulations you better follow it every time.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

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