Surfboarder who cut off another Surfboarder already in the wave is protected by the defense of Primary Assumption of the Risk

Unwritten rules of surfing etiquette are not rules of surfing. When you see other surfers breaking those rules all the time, you can’t complain when you are injured by someone breaking the rules.

Olson v. Saville, 2d Civ. B324465 (Cal. App. Jan 17, 2024)

State: California; California Court of Appeals, Second District, Sixth Division

Plaintiff: Mark Olson

Defendant: Patrick Saville

Plaintiff Claims: Negligence

Defendant Defenses: Primary Assumption of the risk

Holding: for the defendant

Year: 2024

Summary

The court found the plaintiff assumed the risk in surfing when the plaintiff admitted seeing other surfers do the things the defendant alleged did to the plaintiff which the plaintiff complained about in his lawsuit. In California, assumption of the risk can be decided by the court and stop a negligence claim.

Facts

Appellant and respondent were surfing in a group at Miramar Beach in Montecito. Respondent was riding a custom longboard without a leash. Appellant caught a wave. Respondent then “appeared out of nowhere” and “dropped in” on the wave without looking in appellant’s direction. This forced appellant “to make a fast turn correction to his left toward the beach” and to “exit into the white water to his left.” Appellant “grabbed both [of] his board rails (aka sides) and pushed himself and the nose of the board slightly down and into the foam pile of whitewater toward the deeper water and away from respondent.” Respondent was still standing on his board heading toward the shore. As appellant made his exit and ducked into the wave, respondent’s board propelled backward and struck appellant’s torso and back.

Appellant sued respondent for negligence. He alleged that respondent “intentionally entered the wave and intentionally cut off appellant’s path of travel, thereby forcing appellant to exit the wave.” He further alleged that respondent’s “failure to use a leash to control [his] longboard” and his use of a “sharpened and deadly fin” was “reckless and displayed a w[a]nton disregard for the safety of others.” Respondent moved for summary judgment on the ground that appellant’s cause of action was barred under the primary assumption of risk doctrine. The trial court granted the motion, finding “the inherent risks of the sport of surfing include surfers ‘dropping in’ on other surfers, not wearing leashes while riding longboards of the type used by respondent, and using surfboards that have sharp fins.”

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

This was a simple analysis of the risk of Surfing. It was also an argument between two experts and ended being about who did the better job of explaining their position. To some extent, there was also the issue of the plaintiff’s arguments was tenuous at best.

Since the 1992 decision in Knight v. Jewell, 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 California has maintained that sports and recreational activities have risks and removing those inherent risks from the sport destroys the sport. Thus, you assume the risk of the sport when you engage in the sport or activity.

Here, the plaintiff argued the defendant was negligent in his surfing and those actions gave rise to the plaintiff’s injuries. The defense argued the Plaintiff assumed the risk.

Under California law for a defendant to prove the Plaintiff assumed the risk the defendant must:

A defendant seeking summary judgment on the basis of primary assumption of the risk must establish ‘that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.’ If the defendant meets this burden, the burden of production shifts to the plaintiff to “set forth the specific facts showing that a triable issue of material fact exists.”

During a trial, there is a burden on one or the other parties. Usually, the burden starts with the plaintiff who must prove the elements of their claim. If the plaintiff is arguing negligence, the burden is on the plaintiff to prove there was a Duty, the defendant breached that Duty, the Plaintiff was injured and that injury can be reduced to damages the court can award. If the plaintiff proves those four elements of negligence, then the burden shifts to the defendant. The defendant’s burden is either to prove the Plaintiff was wrong about the negligence claim or there was a defense such as assumption of the risk so the defendant had no duty to the plaintiff.

In this case, a motion is being argued and there is still a burden on both parties. Here the court defined assumption of the risk and when the burden shifted from one party to the other. the defendant met its duty and proved the plaintiff assumed the risk. If the defendant proved assumption of the risk, the burden then shifted to the plaintiff because there were facts still in dispute to the case would go to trial.

The burden on the plaintiff was to prove a triable issue of fact. Something in dispute that cannot be decided in a motion, but only by the jury.

There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof

The court then explored assumption of the risk under California law.

The primary assumption of risk doctrine “precludes liability for injuries arising from those risks deemed inherent in a sport.” It “rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration-or cause abandonment’ of the activity.” The doctrine applies both to sports and recreational activities “‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.

If the plaintiff assumes the risk, there is no duty on the defendant to protect the plaintiff from the risks, the plaintiff assumes.

[D]efendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport.

The removal of the duty goes so far that there is no duty short of intentionally injuring or the defendant’s conduct is so reckless to be outside the ordinary risks of the activity.

A coparticipant breaches this duty only if he “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.

What defines risk in a sport or activity. According to the court:

“[C]onduct is within the range of ordinary activity involved in a sport if that conduct cannot be prohibited without deterring vigorous participation in the sport or otherwise fundamentally altering the nature of the sport.” Determining the nature of a defendant’s legal duty (and the inherent risks that flow from the activity) “depends heavily on the nature of the sport itself.

Under California law, for a judge to decide that the plaintiff assumed the risk based on both case law and their own experience as well as any expert witness opinions.

Judges deciding inherent risk questions under Knight 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.” Courts generally do not consider the legal conclusions of expert declarations but can receive “expert testimony on the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant’s conduct.’

Rarely is a judge’s personal experience allowed to influence an opinion.

In this case, the court compared the risks of surfing to the risks of snow skiing. Skiing had been declared a sport where the plaintiff assumed the risk of the sport so the comparison was valid based on the prior case law.

California courts have applied the doctrine to coparticipants in a variety of sports, such as snow skiing and other non-contact sports, but not yet to surfing [holding the doctrine barred a skier’s negligence claim against another skier who unintentionally injured him in a collision]; [extending the doctrine to apply to the non-contact sport of golf].) We note that snow skiing and surfing have much in common: (1) “both sports involve individual participants that use nature, either a mountain slope or wave, as a propulsion mechanism”; “[b]oth require similar equipment in the form of skis, snowboard, or surfboard to participate”; and (3) “the most important similarity between skiing and surfing is the use of the right-of-way custom to promote safety and order among participants.

In this case, the opinions of the plaintiff’s expert witness and the defendant’s expert witness had similar opinions about the risks of surfing, which did not bode well for the plaintiff.

The plaintiff’s expert brought in the phrase “surfing etiquette” which are “unwritten safety customs and practices“. However, the expert went on to say that surfers violated the rules all the time. Longboard surfers, of which the defendant was one, regularly surfed without a leash.

…[t]hese rules encompass such things as priority, right-of-way, and sharing waves.” Nonetheless, “violating this surfing etiquette is common among surfers.” He further opined it is “not uncommon for surfers to surf without a leash” and “[m]any longboard surfers particularly enjoy the challenge and freedom of surfing without a leash” which otherwise could interfere with their footwork and speed.

It was easy to find the plaintiff’s injuries arose from the risks of surfing.

The court then examined the plaintiff’s claim that the defendant acted “Recklessly or Increased the Inherent Risks of Surfing’” Proving this would shift the burden to the defendant to prove his actions were not reckless or increased the risk, which would eliminate the defense of assumption of the risk.

However, that failed. Proving the defendant did not meet some unwritten rules, did not prove the defendant acted recklessly or increased the risk to the plaintiff.

Showing respondent could have acted with more caution does not establish he acted recklessly. Reckless conduct is more than “‘”inadvertence”‘” or “‘”a failure to take precautions.”‘ It requires a “‘”deliberate disregard” of the “high degree of probability”‘” that an injury will occur. Although both experts acknowledged respondent may not have followed the rules of etiquette, we are wary of relying too heavily on such guidelines when defining the scope of an activity’s inherent risks.

The plaintiff had admitted that he had seen other surfers do all the things that he claimed the plaintiff had done to bar the defense of assumption of risk. Consequently, the court held the plaintiff had assumed the risk.

The undisputed evidence here showed that failure to follow the rules of etiquette is common in the surfing community. Appellant admitted: (1) he has witnessed other surfers riding a longboard without a leash; (2) a leash could obstruct some movement of an advanced surfer; (3) he has witnessed prior collisions between surfers; (4) he has witnessed another surfer failing to maintain control of their board; and (5) he personally has had surfers “drop-in” or “shoulder-hop” on his wave. Respondent’s similar conduct, it follows, was not reckless or outside the range of the ordinary activity in surfing.

If you see others taking risky actions, that is proof you know the risks. If you then go surfing, that is proof you assumed the risks. The plaintiff assumed the risks of surfing and the defendant did not owe the plaintiff a duty.

So Now What?

In most states, assumption of the risk is a valid defense to a negligence claim. In a few states, assumption of the risk is still merged with contributory negligence and only reduces the damages and does not preclude a claim.

In a few states, the courts are allowed to make decisions on assumption of the risk, which is usually reserved for the jury, the trier of fact, if either the jury could not find anything but assumption of the risk or the experience of the court and case law show the actions of the plaintiff proved he or she assumed the risk.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is

Outdoor Recreation Insurance, Risk Management, and Law

Outdoor Recreation Insurance, Risk Management, and Law.

To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

If you like this let your friends know or post it on FB, Twitter, or LinkedIn

Facebook

LinkedIn

Threads Logo

X (formerly known as Twitter)

Blue Sky

If you are interested in having me write your release, fill out this Information Form and Contract by clicking here and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

G-YQ06K3L262

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,