Murphy v. Matas
Filed 9/12/13 Murphy v. Matas CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
LYNETTE MURPHY,
Plaintiff
and Appellant,
v.
DAVID MATAS et al.,
Defendants
and Respondents.
A135758
(Alameda County
Super. Ct.
No. HG11568014)
ORDER MODIFYING
OPINION
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that
the opinion filed herein on August 23, 2013, be
On page 12, in the
last sentence of the first full paragraph, replace the last word “boat†with
“tube.†The sentence is thereby modified
to read:
In support of this,
she cites the speed of the boat, the fact that other people complained of
injuries, and the fact that one child was thrown from the tube.
On page 12, the
first sentence of the second full paragraph is also modified to read:
None of Murphy’s
evidence creates a triable issue regarding whether Matas intended to throw
people from the tube.
On page 15, the
following sentence of the last paragraph is modified to read:
Indeed, Murphy
presented the contents of the manuals in support of her opposition to the summary
judgment motions.
The petition for
rehearing is denied.
Kline, P.J.
Filed 8/23/13 Murphy
v. Matas CA1/2 (unmodified version)
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for purposes
of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
LYNETTE MURPHY,
Plaintiff
and Appellant,
v.
DAVID MATAS et al.,
Defendants
and Respondents.
A135758
(Alameda
County
Super. Ct. No.
HG11568014)
Lynnete Murphy was
injured while riding in an inflatable raft or tube while being towed behind a
motorboat driven by David Matas, a pastor at Cornerstone Fellowship of
Livermore, California (Cornerstone).
Steve Viss owned the motorboat and tube.
Murphy sued Matas and Cornerstone for negligence and Viss and
Cornerstone for negligent entrustment.
Murphy’s claims were subject to the defense of primary assumption of risk and
granted summary judgment against Murphy’s claims. Murphy appeals and asserts that primary
assumption of risk does not bar her claims.
We affirm the judgment.
On August 15,
2010, Murphy, her husband, and two stepchildren attended a recreational event,
Cornerstone Fellowship Singles Ministry Water Day Event, organized and promoted
by Matas and Cornerstone. The event was
at Lake Hogan in Valley Springs, California.
The recreational activity of tubing was offered at the event. Tubing, according to Viss, “is a water
activity in which individuals ride on an inflatable raft, such as the ski tube,
while it is being towed by a motorboat.â€
Matas borrowed a
motorboat and a Sea-Doo Triangle Towable Ski Tube (Sea-Doo tube or raft) that
were owned by Viss for the church event.
Viss did not attend. Matas operated
the motorboat and towed the Sea-Doo tube, which accommodated three
persons. During one of the rides,
Murphy’s husband and two stepchildren rode in the motorboat with Matas and
Murphy, a child, and another adult rode in the tube. Murphy was not ejected from the tube during
her ride. After Murphy rode in the tube,
her husband and her stepson rode in the tube; Murphy took a video of them.
On March 28,
2011, Murphy filed a complaint for negligence against Matas and Cornerstone and
for negligent entrustment against Cornerstone, Viss, and Paul Schaffer. Murphy alleged that Viss and Schaffer jointly
owned the motorboat driven by Matas. She
alleged that Matas operated the “motorboat at excessive speed, and caus[ed] the
motorboat and those being towed in the inflatable raft to make sharp ‘S’ turns
. . . .†She claimed that Matas operated
the motorboat seven to eight miles per hour over the recommended speed limit
for the tube. She asserted that Matas’s
improper operation of the boat resulted in the inflatable raft’s crossing a
wake, and caused the raft to be thrown up in the air from the surface of the
water. She claimed that the raft then
landed “with great force on the water’s surface[.]†Murphy maintained that she severely injured
her back as she suffered a compression fracture of one of her lumber vertebrae
and damage to her intervertebral discs at various places throughout her
spine. As a result, Murphy had to have
back surgery to repair the fracture to her lumbar vertebra.
Matas and
Cornerstone
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moved for summary judgment; Murphy opposed both motions. Murphy did not dispute that Viss was the sole
owner of both the Sea-Doo tube and motorboat and that Schaffer did not own the
motorboat. The motions for summary
judgment were based on the argument that the primary assumption of risk defense
completely barred Murphy’s negligence and negligent entrustment claims.
Defendant filed
two declarations in support of the motions for summary judgment. Schaffer declared that he had substantial
experience with tubing as both a tube rider and boat operator since 1993. He declared that “[t]ubing on a lake
typically involves pulling passengers on a tube, at a relatively high rate of
speed.†He asserted: “In my experience, tube riders engage in the
activity of tubing in order to experience the thrill of whipping across the
water at speeds [that] challenge their ability to stay on the tube. During tubing, it is typical for the driver
of the boat to make sharp turns, which cause the tube to travel over the boat’s
wake at an increased speed. This often
causes the tube to become airborne, which is intended [to] increase the thrill
of the ride because it increases the chance that they will fall off the
tube. During tubing, riders often fall
off the tube.â€
Similarly, Viss
declared that he had substantial experience with tubing as both a tube rider
and a boat operator and that “[t]ubing on a lake typically involves pulling
passengers on the ski tube at a relatively high rate of speed with the intended
purpose of challenging the riders’ ability to remain in or on the tube through
quick and sometimes sharp turns of the boat causing the tube to increase in
speed and travel over the boat’s wake.
When a tube crosses the wake of a boat, the tube and its riders
experience a turbulence effect[,] which further increases the physical
challenge of remaining in the tube because the riders are jostled about,
sometimes violently. This frequently
causes the tube to become airborne, which is typically viewed by tube riders to
add to the thrill of the ride because of the increased physical challenge and
the increased risk of falling off the tube.
Tubing rides typically end when a rider falls off the tube.â€
In opposition to
the motions for summary judgment, Murphy presented Matas’s deposition
testimony. Matas stated that he had
driven a motorboat that towed passengers in a tube hundreds of times and that
he had operated the motorboat in a manner designed to eject passengers from the
tube but that was not his normal manner of operating. He explained that a person wanting a ride
with a greater thrill could use a device that permits the person “to roll offâ€
more easily but that he would give that type of ride only if it were safe and
desired by the rider. The tube he used
when Murphy was riding was not designed for people to fall off of it. He acknowledged knowing that Murphy had been
in the hospital just prior to the event; he had told her that maybe she should
not participate in tubing. He admitted
that another person also claimed a sore neck as a result of riding in the tube
towed by him and that person had reported to him that she believed he had gone
too fast. He noted five other people
commented that they were sore as a result of the tube ride. Another person at the event was towing a tube
with riders and Matas was not aware of anyone in that tube being injured.
Murphy also
submitted Viss’s deposition testimony.
Viss testified that the Sea-Doo tube had a warning label on the side of
the tube regarding the maximum speed for towing. He believed the speed limit stated was 20
miles per hour for adults and 15 miles per hour when towing children.
According to
Murphy’s husband, Matas stated at one point during Murphy’s ride that the “motorboat
was going†“ ‘27 miles per hour.’ â€
to Murphy’s husband, making very sharp turns, and at one point the tube hit the
motorboat’s wake and the tube became airborne.
Murphy’s husband added that Matas drove the motorboat in a similar
fashion while he was tubing and one of the children in the tube with him was
ejected.
Brad P. Avrit, a
civil engineer and Murphy’s expert in safety engineering, provided a
declaration. He stated that Matas “was
apparently engaged in a series of turns (‘S’ turns), causing the subject raft
to be accelerated laterally, making impact with the wake of the subject
motorboat . . . , which . . . would be considered ‘hot-dogging,’ and with the
intent of trying to eject passengers from the tube into the water.†He added that the speed of the raft at the
time that it impacted the motorboat wake would have been significantly greater
than the speed of the boat, which was, according to Murphy’s husband, 27 or 28
miles per hour. He estimated that the
tube would have been traveling 34 to 42 miles per hour.
The manual and
safety instructions for the motorboat owned by Viss provided as follows: “Use of this product and participation in the
sport involves inherent risks of injury or death.†It also specified that the “[t]ow vehicle
driver is RESPONSIBLE for the rider on the tube since the tube cannot be
controlled by the rider, and since the rider’s vision can be impaired by the
spray from the tube.†It also instructed
that the “[t]ow vehicle driver should AVOID excessive speed or sharp turns,
because the tube will accelerate and arc around corners, which might cause the
tube to flip over abruptly, resulting in serious injury or death to the
rider(s).†The manual warned that if the
boat’s speed is 20 miles per hour, the towable speed could be 30 to 50 miles
per hour and that the towable speed increases when the boat makes a turn of 90
to 180 degrees.
When Viss
replied to Murphy’s opposition to his motion for summary judgment, he attached a
supplemental declaration of his counsel and attached evidentiary materials,
including pictures of Murphy while she was riding on the tube. These photographs included captions that
indicated Murphy was having fun. Murphy
objected to this evidence, and claimed that the captions were from a website
and had been altered by someone other than Murphy.
The trial court
granted the motions for summary judgment by Matas, Cornerstone, and Viss. The court ruled that the primary assumption
of risk doctrine was a complete defense to Murphy’s negligence claim against
Matas and Cornerstone under Record v.
Reason (1999) 73 Cal.App.4th 472 (Record). The court found that the claim of negligent
entrustment against Cornerstone failed because Cornerstone did not own the motorboat. Additionally, since the court had determined
that Matas and Cornerstone had no duty to Murphy, and Viss’s liability was
derivative, Murphy’s claim for negligent entrustment against Viss also failed. Both Murphy and the defendants had raised objections
to evidence and the court overruled all of the objections.
Murphy moved for
a new trial, which the court denied. On
June 15, 2012, Murphy filed a notice of appeal from the judgment in favor of
Viss and from the judgment in favor of Matas and Cornerstone.
We review a trial court’s grant of
summary judgment de novo. (
Cal.4th 384, 388-389.) “In performing
our de novo review, we must view the evidence in a light favorable to [the]
plaintiff as the losing party [citation], liberally construing [the
plaintiff’s] evidentiary submission while strictly scrutinizing [the]
defendant[’s] own showing, and resolving any evidentiary doubts or ambiguities
in [the] plaintiff’s favor.†(
Cal.4th 763, 768-769.)
The trial court shall grant the defendant’s
motion for summary judgment “if all the papers submitted show that there is no
triable issue as to any material fact and that [defendant] is entitled to a
judgment as a matter of law.†(Code Civ.
Proc., § 437c, subd. (c).) A
defendant moving for summary judgment meets its burden of showing that there is
no merit to a cause of action by showing that one or more elements of the cause
of action cannot be established or that there is a complete defense to that
cause of action. (Code Civ. Proc., §
437c, subd. (p)(2).) Once the defendant
has made the required showing, the burden shifts back to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of
action or defense. (Aguilar v.
Atlantic Richfield Co. (2001) 25
Cal.4th 826, 849, 853.) California law requires that “a defendant
moving for summary judgment . . . present evidence, and not simply point out
that the plaintiff does not possess, and cannot reasonably obtain, needed
evidence.†(Id. at p. 854, fn. omitted.)
In the present case, the trial court found that
the primary assumption of risk doctrine applied. Whether the assumption of risk doctrine
applies in a particular case is a question of law. (See, e.g., Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990,
1004 (Kahn) [“the question of ‘the
existence and scope’ of the defendant’s duty is one of law to be decided by the
court, not by a juryâ€]; Beninati v. Black
Rock City, LLC (2009) 175 Cal.App.4th 650, 656; Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632.) The question whether that duty has been
breached is a question of fact. (See,
e.g., Shin v. Ahn (2007) 42 Cal.4th
482, 497.)
and the Application of Primary Assumption of Risk
A.
“The doctrine of assumption of risk in negligence cases embodies two components: (1) primary assumption of risk—where
the defendant owes no duty to the plaintiff to protect him or her from the
particular risk, and (2) secondary assumption of risk—where
the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters
a risk created by the breach of
that duty. [Citation.] Primary assumption of risk
operates as a complete bar to the plaintiff’s cause of action, while the
doctrine of secondary assumption of risks is part of the comparative fault scheme, where the trier of
fact considers the relative responsibility of the parties in apportioning the
loss.†(Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 178.)
“Although persons generally owe a duty of due
care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714,
subd. (a)), some activities––and, specifically, many sports––are inherently
dangerous.†(Kahn, supra, 31 Cal.4th at p. 1003.) “Primary assumption of risk is merely another
way of saying no duty of care is owed as to risks inherent in a given sport or
activity. The overriding consideration
in the application of this principle is to avoid imposing a duty which might
chill vigorous participation in the sport and thereby alter its fundamental
nature.†(Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746,
751-752.)
The Supreme Court in
assumption of risk to an informal game of touch football. (Id. at
p. 300.) The court explained that
certain dangers are often integral to “the sport itself†and that defendants
generally have no duty to protect a plaintiff from “risks inherent in the sport
itself . . . .†(Id. at p. 315.) Those
involved in the sporting activity have a duty not to increase the risk of harm
that is inherent in the sport itself. (
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.†(
In the recent case of
Cal.4th 1148 (Nalwa), the Supreme
Court clarified that “the primary assumption of risk doctrine is not limited to
activities classified as sports, but applies as well to other 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.’ [Citation.]†(Id. at
p. 1156.) The court stated that a
defendant has a limited duty of care under the primary assumption of risk
doctrine, which is “the duty not to unreasonably increase the risk of injury
over and above that inherent†in the recreational activity. (Id. at
p. 1152.)
B. Matas Did Not Unreasonably Increase the Risk
of Injury to Murphy
An activity falls under the doctrine
of primary assumption of risk 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.†’ †(Calhoon
v. Lewis (2000) 81 Cal.App.4th 108, 115.)
The court in Record, supra, 73
Cal.App.4th 472, held that primary assumption of risk applies when a person is
injured while voluntarily participating in the recreational activity of tubing.
does not object to the application of primary assumption of risk to tubing, but
contends that the reckless manner in which Matas drove the motorboat increased
the risk of injury and therefore there is a triable issue of fact as to whether
Matas and Cornerstone breached their duty.
(See Kahn, supra, 31 Cal.4th
at p. 1004 [“defendants 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 sportâ€].) Thus, we
must determine whether the undisputed facts establish as a matter of law that
Matas’s conduct did not increase the risk of injury inherent in the sport of
tubing or that Matas’s conduct was not “so reckless as to be totally outside
the range of the ordinary activity involved†in tubing. (Knight,
supra, 3 Cal.4th at p. 320.)
The question of which risks are
inherent in a recreational activity is fact-intensive but may be resolved by a
summary judgment motion. (
1158.) Judges deciding inherent risk
questions under this doctrine “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.â€
Vigorous participation often includes accidentally careless behavior and
imposition of liability in such circumstances would chill participation in the
sport. (See Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1222 (
assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from
ordinary, or simple negligenceâ€].)
Murphy contends that Matas was reckless in his
operation of the motorboat and increased the risks inherent in tubing. Specifically, she asserts that the boat was
traveling 27 to 28 miles per hour while the manual and warning label instruct
boat drivers not to exceed 20 miles per hour when towing adults in a tube. The manual and label admonish not to exceed
15 miles per hour when towing children in a tube. Additionally, Matas was reckless, according
to Murphy, because he made sharp turns.
Arguments similar to those made by
Murphy in this appeal were raised by the plaintiff and rejected by the
appellate court in Record, supra, 73
Cal.App.4th 472. In Record, the plaintiff sustained a spinal injury after falling out
of an inner tube towed by a motorboat. (
boat, and the trial court granted the defendant’s motion for summary judgment
on the grounds that the doctrine of primary assumption of risk applied. (Ibid.) The plaintiff argued on appeal that even if
primary assumption of risk applied to the recreational activity of tubing, he
raised a triable issue of fact as to whether the defense did not apply in this
particular situation for the following reasons:
he told the defendant to go slowly and take it easy because of his
preexisting injury; the defendant was reckless because he made a sharp turn and
was traveling at 30 miles per hour at the time plaintiff was injured; and the
defendant, as the driver of the boat, controlled the tube rider’s activity and
was not a coparticipant. (
plaintiff’s arguments.
With respect to the first claim that
the plaintiff had informed the defendant about his preexisting injury and had
asked the defendant to go slowly, the appellate court in Record, supra, 73 Cal.App.4th 472, cited the Supreme Court’s
statement in Knight that a party
cannot change the inherent nature and risk of a sport by making a unilateral
request that other participants play less vigorously. (Record,
at p. 482, citing Knight, supra, 3
Cal.4th at p. 300 [it was immaterial that the plaintiff asked the defendant
when playing touch football “ ‘ “not to play so rough†’ †and to “ ‘ “be
careful†’ â€].) The Record court explained that “tube riders engage in the activity of
tubing in order to experience the thrill of whipping across the water at speeds
[that] challenge their ability to stay on the tube. Both appellant and respondent testified via
deposition that falling out of the inner tube is a ‘common occurrence’ and that
‘[e]verybody falls off the innertube.’
Neither appellant’s preexisting injuries nor his admonition to
respondent to ‘[k]ick back’ and ‘take it easy’ can be used to define the nature
of the activity or the parties’ relationship to it. Nor can these factors be used to redefine the
ordinary range of activity and the concomitant risks inherent in the sport and
thus enlarge the potential liability of coparticipants.†(Record,
at pp. 483-484, fn. omitted.)
The appellate court in
considered the plaintiff’s assertion that the defendant was reckless as he was
going 30 miles per hour and making a sharp turn at the time of the injury and
the testimony of plaintiff’s expert that these actions exceeded the
recommendations of the manufacturers of tubing equipment. (Id. at
p. 484.) The appellate court in
holding in Ford v. Gouin (1992) 3
Cal.4th 339 (Ford), where the
plaintiff had been injured while waterskiing.
The Ford court explained: “Imposition of legal liability on a ski boat
driver for ordinary negligence in making too sharp a turn, for example, or in
pulling the skier too rapidly or too slowly, likely would have the same kind of
undesirable chilling effect on the driver’s conduct that the courts in other
cases feared would inhibit ordinary conduct in various sports. As a result, holding ski boat drivers liable
for their ordinary negligence might well have a generally deleterious effect on
the nature of the sport of waterskiing as a whole.†(Id. at
p. 345.)
The court in Record, supra, 73 Cal.App.4th 472, presumed for the purpose of the
summary judgment review that the boat was traveling five to ten miles per hour
over the recommended speed limit for towing adults in the tube and that the
respondent made a sharp three-quarter turn.
(Id. at p. 485.) The court concluded that such activity “was
merely negligent, ‘an “inherent risk†of [the] sport,’ barring recovery for the
[plaintiff]. [Citation.] Holding a boat driver to a duty to ensure the
tube rider does not fall off the tube would inevitably chill the driver’s
willingness to provide the exciting ride that appears to be necessary to tubing
and would narrow the spectrum of excitement, changing the fundamental nature of
the sport.†(Record, at p. 485.)
The court in Record, supra, 73 Cal.App.4th 472, also discounted the contention
that the primary assumption of risk doctrine did not apply because the boat
driver had control over the tube rider’s speed and direction. (Id. at
p. 485.) The court noted that the boat
driver was considered to be a coparticipant in the sport of waterskiing (see
thus a boat driver was a coparticipant in tubing. (Record,
at pp. 485-486.) The court noted
that both parties chose to engage in a mutually enjoyable activity and, thus,
both the tube rider and the boat driver were participants in that activity. (Ibid.)
Under the holding of
primary assumption of risk doctrine bars any claim of negligence in the present
case. (See also Bjork v. Mason (2000) 77 Cal.App.4th 544, 550 (Bjork) [applied primary assumption of risk to tubing].) Murphy’s argument that the primary assumption
of risk doctrine does not prevent her claim is based on her evidence that Matas
was traveling 27 to 28 miles per hour and that driving at this speed was
reckless because the manual and warning label instructed boat drivers not to
exceed 20 miles per hour when towing adults in a tube and 15 miles per hour
when towing children in a tube. Further,
she claims that Matas was reckless when he made a sharp turn. As already discussed, these identical
arguments were raised and rejected in Record. Thus, even if we presume that Matas was
driving the boat seven to eight miles per hour above the recommended speed for
an adult and was making sharp turns, such behavior was simply negligent and not
intentional or reckless misconduct outside the range of ordinary activity involved
in tubing. Murphy asserts that a child
was in the tube and thus Matas should have been traveling 15 miles per
hour. Murphy, however, is an adult and
there is no claim of an injury by a child in this lawsuit.
Murphy also argues that even Schaffer
admitted in his declaration that pulling the tube across the wake at a high
speed creates the risk that riders in the tube will be ejected into the
water. She asserts that the evidence
showed that Matas was trying to eject the riders from the tube. In support of this, she cites the speed of
the boat, the fact that other people complained of injuries, and the fact that
one child was thrown from the boat.
None of Murphy’s evidence creates a triable issue
regarding whether Matas intended to throw people from the boat. More significantly, Murphy was not injured
because she was thrown into the water.
She was not thrown into the water.
Her injury to her back was sustained while riding in the tube. Thus, the question is whether Matas intended
to injure Murphy or engaged in reckless conduct. As already discussed, presuming that the
speed of the boat was above the recommended 20 miles per hour for an adult,
this speed did not constitute reckless conduct that increased the risks above
those inherent in tubing. (See
Cal.App.4th 1249, 1276 (Distefano)
[conduct of the driver of a dune buggy was not so reckless as to be completely
outside the range of the activities involved in the sport of off-roading when
he collided with an off-road motorcycle and “was driving fast in the middle of
a narrow dirt trail and cresting a blind hillâ€].) Nor does any of the evidence show any intent
to injure Murphy. Indeed, in her
separate statement of undisputed facts in opposition to the summary judgments
in the lower court, Murphy indicated that it was “[u]ndisputed that she did not
allege that Matas intentionally injured her.â€
Finally, Murphy stresses that Matas
knew that she had been in the hospital just before this incident. This fact, however, is irrelevant to the
application of the primary assumption of risk doctrine. The focus is on the nature of the sport or
recreational activity itself and not the particular plaintiff’s subjective
knowledge or expectations and the plaintiff’s preexisting injury cannot change
the definition of the activity or the parties’ relationship to it. (Knight,
supra, 3 Cal.4th at pp. 312-313; Record,
supra, 73 Cal.App.4th at pp. 482, 483.)
Tubing clearly involves riding in an inflatable
tube and the risk that the ride might be turbulent and that the tube might go
airborne. “[T]ube riders engage in the
activity of tubing in order to experience the thrill of whipping across the
water . . . .†(Record, supra, 73 Cal.App.4th at p. 483.) Requiring the driver of the boat towing the
raft to eliminate any risk that would prevent a person from suffering a back
injury, as Murphy suffered, while riding in a turbulent or airborne raft would
alter the fundamental nature of tubing.
Here, Murphy voluntarily participated in tubing and suffered the type of
injury that is inherent to tubing. Accordingly, we
conclude that the doctrine of primary assumption of risk bars Murphy’s claim of
negligence.
C. Evidentiary
Rulings
court incorrectly overruled her objections to the evidence Viss submitted with
his reply to Murphy’s opposition to his summary judgment motion. In particular, she objects to three
photographs of Murphy that were found at a website that showed a smiling Murphy
in the tube with captions, such as, “Laughing tons.†Murphy argues that the trial court erred in
considering this evidence because it was attached to Viss’s reply papers and
that this error should result in reversal.
(See San Diego Watercrafts, Inc.
v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312-313 [right to due
process violated when court granted summary judgment and relied on evidence
filed after the opposition to the summary judgment motion had been
filed].)
The photographs of Murphy in
the tube, without the captions, had been produced by Murphy in discovery. Murphy maintains that someone else altered
the captions taken
from the web site. She
maintains that the original caption stated, “Laughing tons, but that was before
we were about 3½ feet into the air!!!â€
Murphy
incorrectly asserts that any error in considering this evidence should result
in reversal. Murphy must show that she
was prejudiced by the trial court’s failure to strike the evidence attached to
Viss’s reply papers. (Cal. Const., art.
VI, § 13; Code Civ. Proc., § 475.) Here,
Murphy’s sole claim of prejudice is that the “deleted language puts a far
different spin on Murphy’s attitude toward the ride than is reflected by Viss’s
argument in his reply[,] which is based upon altered evidence.â€
Murphy has completely failed
to demonstrate any prejudice. The
photographs depicting Murphy as enjoying herself or laughing while tubing with
captions indicating that she was enjoying her tubing experience are completely
irrelevant. As already discussed,
Murphy’s subjective experience has no bearing on the application of the primary
assumption of risk doctrine. (See Knight,
supra, 3 Cal.4th at pp. 312-313.) Thus, even if
this evidence was erroneously considered, any such error was harmless.
D. Spoliation
Murphy
claims that Matas offered different explanations regarding the disappearance of
the envelope he received from Viss. She
asserts that Viss gave Matas an envelope that contained the manuals to the boat
and raft and Matas was unable to produce this envelope. She contends that the missing envelope
creates “an inference of spoliation of evidence†that reflects Matas’s
“consciousness of guilt†and that this inference provided sufficient evidence
to require the negligence claim go to the jury.
Viss testified
he recalled giving Matas an envelope with some information when Matas borrowed
his boat and inflatable raft. He
recalled that the envelope contained manuals of the boat, the current
registration, and insurance. He could
not remember whether there was any manual in the envelope concerning the
Sea-Doo tube. Matas testified that he
simply pulled out the registration and insurance from the envelope and then put
them back into the envelope. He denied
pulling out or looking at the manuals.
When asked what he did with the envelope, he answered: “I held onto it, had it in my possession
throughout the event in case it was necessary to use it. . . . [¶] I
typically make a copy of those things and then destroy them afterwards, but I
don’t know what I did with it after that.
I have looked for it and haven’t found it.†Subsequently, Matas testified that he
probably last saw the envelope about a month after the tubing incident when he
spotted it on his desk. He stated that
he was going to mail it back to Viss but must have misplaced it.
Murphy claims that the
abovementioned testimony is contradictory and supports an inference of
spoliation of evidence. He maintains
that Matas destroyed the evidence, which shows a consciousness of guilt or
liability and cites numerous cases on spoliation. (Donchin
v. Guerrero (1995) 34 Cal.App.4th 1832, 1841 [false exculpatory statement
is evidence of consciousness of liability]; Bihun
v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 994 [in
sexual harassment case, the harasser’s personnel file could not be located, and
the appellate court upheld the trial court’s instruction that the jury could
infer that the file contained evidence damaging to the defendant’s case if it
concluded that the defendant had suppressed the file], disapproved on other
grounds in Lakin v. Watkins Associated
Industries (1993) 6 Cal.4th 644, 664; People
v. Neely (1993) 6 Cal.4th 877, 896-897 [evidence of flight admissible to
indicate consciousness of guilt]; People
v. Burns (1987) 196 Cal.App.3d 1440, 1455 [letter showing a plan to
fabricate evidence to exonerate the defendant is relevant to show a
consciousness of guilt]; Thor v. Boska (1974)
38 Cal.App.3d 558, 565-568 [defendant unable to produce original clinical
record concerning treatment of plaintiff after charged with malpractice, and
unavailability of original records created a strong inference of consciousness
of guilt].)
None of the foregoing cases
relied upon by Murphy is relevant.
First, Matas’s testimony did not support an inference of
spoliation. Matas consistently stated
that he did not know what he did with the envelope. He did not deny that the manuals were inside
the envelope; he claimed that he had not read them if they were in the
envelope. Second, destroying the envelopes
did not prevent the court from knowing the information contained in the
manuals. Indeed, Murphy presented the
contents of the manuals in support of her summary judgment motion. Third, whether Matas read the manuals was not
material to the application of the primary assumption of risk doctrine. Even if we presume that the envelope
contained the manuals and that Matas read them and then destroyed the envelope,
the primary assumption of risk doctrine still applies. As already discussed, Matas’s knowledge of
the dangers posed by his conduct or the maximum speed to drive the boat is
immaterial as the record is devoid of any allegation or evidence that Matas
intended to injure Murphy. Matas’s
knowledge about the speed limit contained in the manual had no bearing on the
conduct increased the risk inherent to tubing.
E. Negligence
Per Se
violated the Harbors and Navigation Code section 655, subdivision (a) and that
this violation constitutes negligence per se, and defeats the primary
assumption of risk doctrine. This
statute provides: “No person shall use any vessel or manipulate
water skis, an aquaplane, or a similar device in a reckless or negligent manner
so as to endanger the life, limb, or property of any person. The department shall adopt regulations for
the use of vessels, water skis, aquaplanes, or similar devices in a manner that
will minimize the danger to life, limb, or property consistent with reasonable
use of the equipment for the purpose for which it was designed.†(Harb. & Nav. Code, § 655, subd.
(a).) Matas also cites Harbors and
Navigations Code section 650, which states that “[i]t is the policy of this
state to promote safety for persons and property in and connected with the use
and equipment of vessels and to promote uniformity of laws relating thereto.â€
Negligence per se is an evidentiary
doctrine codified at Evidence Code section 669.
This doctrine is based on “the rule that a presumption of negligence
arises from the violation of a statute which was enacted to protect a class of
persons of which the plaintiff is a member against the type of harm that the
plaintiff suffered as a result of the violation.†(Quiroz
v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) If the presumption of negligence is
established under subdivision (a) of Evidence Code section 669, it may be
rebutted under subdivision (b) of this statute.
Thus, the doctrine of negligence per se does not establish tort
liability or a private right of action for violation of a statute. (Quiroz,
at p. 1285.)
In her opening brief, Murphy does
not mention Whelihan v. Espinoza (2003)
110 Cal.App.4th 1566, 1569 (Whelihan)
or Peart v. Ferro (2004) 119
Cal.App.4th 60, 65 (Peart), which
hold that negligence per se based on violating provisions of the Harbors and
Navigation Code does not abrogate the primary assumption of risk doctrine. Rather, she relies upon the concurring
opinion in Ford, supra, 3 Cal.4th at
page 351 (conc. opn. of Kennard, J.). In
the concurring opinion, Justice Kennard was joined by Justices Panelli and
Baxter, and they maintained that a plaintiff who has proceeded to encounter a
known risk should be deemed to have impliedly consented to any harm incurred
and should be completely precluded from recovering damages as compensation from
the party who posed the known risk. (
clearly rejected applying the implied-consent theory set forth by Justice
Kennard in her concurrence in Ford.
Murphy also quotes extensively from the
dissenting opinion of Chief Justice George (Ford,
supra, 3 Cal.4th at pp. 364-365)
and the dissenting opinion of Justice Mosk (id.
at p. 369) in Ford. These justices stated that the plaintiff
was within the class of persons Harbors and Navigation Code section 658 was
intended to protect, and therefore under Evidence Code section 669, the
defendant had violated a legal duty of care to the plaintiff. (Ford, at
pp. 364-369.) As the court in
pointed out, subsequently, in Cheong v.
Antablin (1997) 16 Cal.4th 1063, 1069-1070 (Cheong), four justices expressed the view that Evidence Code
section 669 does not bar the application of the assumption of risk doctrine
indicates a legislative intent to eliminate the assumption of risk
defense. (Moser, at pp. 1225-1226.)
In her reply brief, Murphy claims that the
Supreme Court in Nalwa, supra, 55
Cal.4th 1148 pronounced that negligence per se trumps the application of the
primary assumption of risk doctrine. In
while riding bumper cars asserted that amusement parks are subject to state regulations
for safety and inspection, which should preclude applying the primary
assumption of risk doctrine to amusement park rides. (Id. at
p. 1159.) The Nalwa court observed that the plaintiff was not asserting that the
defendant had violated any particular regulation in the operation of the ride
and was “not arguing for a presumption of negligence under Evidence Code
section 669, subdivision (a) that would preclude application here of the
assumption of risk doctrine. (See
generally Cheong . . . , supra, 16
Cal.4th at pp. 1070-1072.)†(
above language in Nalwa and omits the
citation to Cheong. Although separate opinions in
varied views on the relationship between the assumption of risk and the
doctrine of negligence per se, the majority of the justices expressed the
opinion that the common law principles of assumption
of risk are not abrogated by the violation of a statute unless the statute
evinces a clear intent to modify common law assumption of risk principles. (Cheong,
at pp. 1069-1070.) Thus, the above
quote from Nalwa, when interpreted in
its entire context, simply indicates that the plaintiff was not arguing that
negligence per se applied and therefore the defense of the assumption of risk
could not be disregarded on that basis.
Negligence per se, however, could survive this defense if the violated
statute expresses a clear intent to modify common law assumption of risk
principles.
Although the Supreme Court has not yet directly
addressed the application of primary assumption of risk when the defendant’s
negligence is based on the violation of a statute, Courts of Appeal have held
that statutory provisions do not abrogate this defense unless the Legislature
“has explicitly and unambiguously manifested a clear intent to do so. [Citations.]â€
(Peart, supra, 119 Cal.App.4th
at p. 79; Whelihan,
bicyclist defendant violated provisions of the Vehicle Code while participating
in the long-distance bicycle ride but the injured bicyclist’s claim of
negligence per se was barred by the primary assumption of risk doctrine because
a collision between bicycle riders was an inherent risk in the ride];
[motorcyclist injured when he collided with a dune buggy while engaged in the
sport of off-roading could not recover on a claim of negligence per se based on
violations of the Vehicle Code because the collision was an inherent risk in
the sport and the primary
assumption
of risk doctrine barred the claim].) In
her reply brief, Murphy asserts that Peart
and Whelihan were wrongly
decided.
In Whelihan, supra, 110 Cal.App.4th 1566, two jet skiers collided and
the injured skier sued the other for, among other things, negligence per
se. (Id.
at p. 1569.) The injured skier
claimed that the doctrine of primary assumption of risk did not apply because
Harbors and Navigation Code sections 655, subdivision (a), and 655.7,
subdivision (c) define the duty and standard of care when operating watercraft
on public waterways and these statutes were enacted after the Supreme Court’s
decisions in Knight, supra, 3 Cal.4th
296 and Ford, supra, 3 Cal.4th
339. (Whelihan, at p. 1574.) In
rejecting the plaintiff’s contention, the court explained that permitting the
Harbors and Navigation Code to “ ‘trump’ †the doctrine of primary assumption
of risk “would chill vigorous participation in the sport of jet skiing and . .
. have a deleterious effect on the nature of the sport.†(Whelihan,
at pp. 1574, 1575.)
In Peart, supra, 119 Cal.App.4th 60, our court considered a claim for
negligence per se when a minor was injured in a collision with another minor
and both were in personal watercraft.
The court concluded that the primary assumption of risk applied. (Id. at
p. 78.) The plaintiff argued that
Harbors and Navigation Code sections 655.6, 658.5, and 655.3 “ ‘govern the
operation of personal watercraft by minors in California,’ †and [that]
these statutes “establish specific duties of care inconsistent with the primary
assumption of risk doctrine, impose criminal penalties, and thereby necessarily
give rise to civil liability for their violation pursuant to Evidence Code
section 669.†(Peart, at pp. 78-79, fn. omitted.)
The court noted that courts “have repeatedly affirmed that statutory
provisions like those at issue do not abrogate, supersede or displace the
primary assumption of risk doctrine unless the legislative authority has
explicitly and unambiguously manifested a clear intent to do so.†(Id. at
p. 79, citing Cheong, supra, 16
Cal.4th at pp. 1069-1070; Moser, supra, 105
Cal.App.4th at pp. 1225-1226; Distefano,
supra, 85 Cal.App.4th at pp. 1266-1267, 1271-1274.) At the time these statutes were enacted, the
Legislature was aware of the primary assumption of risk doctrine in
applied this doctrine to the sport of water-skiing. The court in Peart concluded that “if the Legislature had intended to supersede
this well-known common law doctrine, it would have said so.†(Peart,
at p. 81.) The court held that
primary assumption of risk was a complete defense to the claim of negligence
per se, which had been based on violations of the Harbors and Navigations
Code. (Peart, at p. 82.)
Murphy complains that
She complains that these courts ignored language in Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, overruled on
another issue in Witt v. Jackson (1961)
57 Cal.2d 57, 70. In
a landlord when they were injured in a fire on the property owned by the
landlord. This case is not relevant as
it did not involve primary assumption
of risk, and did not involve the voluntary
participation in an activity where the risk could not be eliminated without
altering the fundamental nature of the activity.
We agree with the reasoning of
primary assumption of risk bars a claim of negligence per se unless the statute
violated explicitly and unambiguously manifests a clear intent to supersede the
primary assumption of risk defense or the plaintiff establishes that the participant
breached his or her legal duty by intentionally injuring the plaintiff or by
engaging in conduct that was so reckless as to be completely outside the range
of the ordinary activity involved in the sport or recreational activity.
Entrustment
Murphy also
alleged a cause of action for negligent entrustment against Cornerstone and
Viss. To prove negligent entrustment,
Murphy must prove that Matas was negligent in his operation of the boat; that
Viss (or Cornerstone) was an owner of the boat operated by Matas; that Viss (or
Cornerstone) knew, or should have known, that Matas was incompetent or unfit to
drive the boat; that Viss (or Cornerstone) permitted Matas to use the boat; and
that Matas’s incompetence or unfitness to drive was a
substantial factor in causing harm to the plaintiff. (See Jeld-Wen,
Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864, citing CACI No.
724.)
It is
undisputed Viss is the sole owner of the boat driven by Matas. Thus, the trial court properly granted
summary judgment in favor of Cornerstone, since the undisputed facts establish
that Cornerstone did not own the boat.
Furthermore,
the court correctly granted summary judgment in favor of both Viss and
Cornerstone because the primary assumption of risk defense prevents Murphy’s
negligent entrustment cause of action.
One of the elements of negligent entrustment is that the driver of the
boat was negligent. (See
Cal.App.4th at pp. 863-864.) Since we
have concluded that Matas did not breach any legal duty to Murphy when he was
driving the motorboat, Murphy’s claim of negligent entrustment must also fail,
as she cannot, as a matter of law, establish the element of the driver’s
negligence.
The court in
Truong v. Nguyen (2007) 156
Cal.App.4th 865 addressed the plaintiff’s claim of negligent entrustment in a
situation where the defense of primary assumption of risk applied and thus the
driver of the boat had no legal duty to the participant in the activity. In Truong,
two personal watercrafts collided and the passenger in one of the boats
died. The parents of the decedent sued
the driver and owner of the watercraft involved in the collision for wrongful
death based on negligence, negligence per se, and negligent entrustment. (Id. at
pp. 869-870.) The court concluded that
the defense of primary assumption of risk applied to the passenger of the
watercraft. (Id. at p. 892.) The court
cited Whelihan and
ruling that the negligence per se cause of action lacked merit because the
primary assumption of risk doctrine trumped any duty that might be based on a
violation of the statute or regulations.
(Truong, at p. 892.) The court stated that its “conclusion that
the assumption of risk doctrine applies to the negligence cause of action
against [the driver of the watercraft] and relieved him of any duty to [the
decedent] undercuts [the parents’] claim of negligent entrustment. If [the driver] was not negligent because he
had no duty to [the decedent],
then [the owner of the watercraft] cannot be negligent in
entrusting the vessel to [the driver].â€
(Id. at p. 893.)
Murphy
relies on our decision, Bjork, supra,
77 Cal.App.4th 544, when urging this court to conclude that the negligent
entrustment claim can survive the defense of primary assumption of risk. In Bjork,
the defendant owned and supplied the boat used for tubing. (Id. at
p. 552.) The plaintiff was riding in the
inner tube that was being towed by the motorboat driven by the defendant and
was injured when the rope broke and struck him.
We concluded that the defendant in his capacity as the boat operator was
not liable because his acts were neither intentional nor reckless and the defense
of primary assumption of risk applied. (
summary judgment, however, because the primary assumption of risk doctrine did
not apply as an absolute bar to the plaintiff’s theory that the defendant, as the
owner of the boat, negligently supplied a defective cable, which snapped and
caused injury to the plaintiff. (
something separate and distinct from participation in the sport and the tests
for liability are accordingly different.â€
(Id. at p. 553, italics
omitted.) We held that the owner had a
duty not to materially increase the risks to the participant beyond those
inherent in the participation in the sport or activity, and the defense of
primary assumption of risk did not insulate equipment suppliers from liability
for injury from providing defective equipment.
(Id. at pp. 553-556.)
Unlike the situation in
allegation or evidence that Murphy was injured as a result of any defect in the
motorboat or Sea-Doo raft. The
allegations are that Murphy was injured as a result of Matas’s operation of the
motorboat. Since we have concluded that
Matas did not breach any legal duty to Murphy and was not liable for his
driving of the boat, Viss and Cornerstone cannot be liable to Murphy for
providing the motorboat and tube to Matas.
There is no allegation or evidence that Viss or Cornerstone materially
increased the risks inherent to tubing.
Accordingly, the trial court
did not err in granting summary judgment against Murphy’s claim of negligent
entrustment.
The
judgment is affirmed. Murphy is to pay
the costs of appeal.
_________________________
Brick,
J.*
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
* Judge of
the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
for negligent entrustment but he was, subsequently, dismissed as a defendant.
motion was also filed on behalf of Schaffer but he was dismissed as a defendant
on December 8, 2011.
