The California Court of Appeal for the Third Appellate District recently upheld the lower court’s grant of summary judgment for the defendants following a skateboarding death, based on the doctrine of primary assumption of risk.Brett Bertsch died while using a skateboard in Mammoth Lakes, a resort community. His brother and he were traveling downhill at a fast speed and without helmets when the front wheels of Brett’s skateboard hit a gap between the paved road and a cement collar surrounding a manhole cover. As a result, Brett was thrown off the board. He suffered brain trauma and unfortunately eventually passed away from his injuries.
Brett’s father and brother, Richard and Mitchell Bertsch, filed a wrongful death claim against parties including the Mammoth Community Water District (Mammoth), which was responsible for maintaining the manhole cover, and Sierra Star Community Association (Sierra Star), which was the owner of the road where the accident happened. In addition to wrongful death, the Bertsches sued Mammoth and Sierra Star for negligence, premises liability, and negligent infliction of emotional distress. Finally, the plaintiffs argued that Mammoth maintained a dangerous condition on public property, which resulted in the fatal accident. The trial court granted summary judgment in favor of the defendants, concluding the doctrine of primary assumption of risk barred the plaintiffs’ lawsuit as a matter of law. The plaintiffs appealed.
In their motions for summary judgment before the trial court, Sierra Star and Mammoth asserted that the plaintiffs’ claim could not succeed because of the doctrine of primary assumption of risk. Specifically, the defendants argued skateboarding is an activity that 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,” and since Brett assumed the risks inherent in skateboarding, including the risk of falling, the defendants owed no duty to the plaintiffs to protect Brett against that risk.
The plaintiffs opposed, arguing that the doctrine did not apply because Brett was not actually playing a sport or engaging in a similar activity. They argued that he was simply cruising around on the skateboard at a modest speed. The trial court agreed with the defendants, explaining that there was only one logical purpose of Brett’s behavior, which was the entertainment gained by riding on the skateboard.
People are expected to use reasonable care in their conduct to avoid posing foreseeable risks of harm to others who could be affected by their actions. However, there is a related principle, known as primary assumption of risk, which holds that a defendant does not need to protect a participant in a sports or sports-like activity against risks that are inherent in that activity. These types of activities are generally defined by three common elements. They are done for enjoyment or thrill, they require physical exertion as well as elements of skill, and they involve a challenge containing a potential risk of injury. In addition to considering the type of activity, a court will consider the defendant’s role in the plaintiff’s participation in the activity in determining whether this doctrine should apply in a certain case.
The appeals court held that there was evidence submitted in support of the summary judgment motions that established that Brett was doing more than riding his skateboard as a means of transportation. The appeals court agreed with the trial court that there “was only one logical purpose for [the brothers’] behavior” – “the thrill and excitement of coming down the hill on their skateboards.” The court reasoned that the brothers deliberately turned onto the road and went uphill a short distance before turning around to come down the hill.
The court also noted that Brett wasn’t wearing a helmet, which increased the risk of seriousness of a potential injury, and he was riding on the wrong side of the street, which increased the risk of falling.
The court rejected the plaintiffs’ argument that the defendants were negligent in failing to properly maintain the street and manhole cover because there was no organized relationship between either defendant and Brett in relation to this activity. Neither defendant held out the roadway as an appropriate place to skateboard or in any other way represented that the roadway was safe for skateboarding.
The appeals court finally reasoned that for policy reasons, to require the road owners and the water district to make their roads and utility access points safe for skateboarding would amount to an unnecessary burden. Thus, the trial court properly granted the defendants’ motions for summary judgment, based on the doctrine of primary assumption of risk.
The premises liability lawyers at the Neumann Law Group represent victims of accidents throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.
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