Bjork v. Mason
2000 Cal. Daily Op. Serv. 332, 77 Cal. App. 4th 544, 92 Cal. Rptr. 2d 49 (2000)
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Rule of Law:
The primary assumption of risk doctrine, which limits a co-participant's duty of care to avoiding intentional or reckless conduct, does not extend to a gratuitous supplier of equipment whose alleged negligence in providing defective equipment causes injury during a sporting activity. A separate duty exists for equipment suppliers to provide non-defective equipment, regardless of their co-participant status.
Facts:
- On July 17, 1997, 15-year-old appellant, with four other boys, went to Lake Berryessa with respondent Mason, an adult and second cousin to three of the boys, who owned and drove a 1981 Ski Centurion boat.
- Mason had at least 25 years of recreational boating experience, including pulling waterskiers and inner-tubers, and on this day, he was not paid for his time or effort.
- Mason owned the inner tube apparatus, consisting of an inflated rubber tube and an attached rope; he had no idea when or how he acquired it, but testified he used it very seldom and could not recall its age, though he inspected it that day and it appeared safe.
- Sometime in the afternoon, appellant and another boy, Robert Stafford, got on the inner tube together, weighing about 260 pounds combined, which Mason deemed a safe weight.
- As Mason drove the boat near the end of a 'No Wake' zone, he twice briefly accelerated the boat two or three miles per hour above the five mph speed limit to increase the tube's movement.
- At the second acceleration, the towrope broke, and the broken end flew backwards, striking appellant in the eye and causing injury.
- Mason testified he had experienced or seen broken towropes many times in his experience but had never previously seen anyone hurt while tubing.
- Two expert witnesses later opined that the towrope was 'very old' (perhaps 10 years old) and frayed, that towropes should be replaced when frayed and at least every two years, and that the rope used should be appropriate for the weight being towed.
Procedural Posture:
- On October 2, 1997, appellant, via his guardian ad litem father, filed a complaint stating a single cause of action for negligence against respondent Mason in Marin County Superior Court (the trial court/court of first instance).
- Respondent filed a general denial, specifically pleading assumption of risk.
- After discovery, respondent moved for summary judgment.
- On July 22, 1998, the trial court granted respondent's motion for summary judgment, finding the case covered by the primary assumption of risk doctrine.
- On September 21, 1998, judgment was entered for respondent.
- Appellant filed a timely appeal to the California Court of Appeal, First Appellate District, Division Two (intermediate appellate court).
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Issue:
Does the primary assumption of risk doctrine, which limits a co-participant's liability to intentional or reckless conduct in active sports, apply to bar recovery against a gratuitous supplier of allegedly defective equipment when the equipment's failure causes injury during a sporting activity?
Opinions:
Majority - Haerle, Acting P. J.
No, the primary assumption of risk doctrine does not bar recovery against a gratuitous supplier of allegedly defective equipment in a sports activity, even if that supplier is also a co-participant. The court affirmed that tubing is an active sport covered by primary assumption of risk and that a boat driver is a co-participant. It further agreed that Mason's minor accelerations did not increase the inherent risks of the sport beyond ordinary negligence. However, the court distinguished between the risks inherent in the sport's activity and the risks associated with defective equipment supplied by a participant. Citing Knight v. Jewett, which distinguished between a ski resort not smoothing moguls and allowing towropes to deteriorate, and other cases involving faulty equipment, the court found that the act of supplying equipment is separate and distinct from participating in the sport. The court referenced Restatement Second of Torts sections 388 and 405, which establish a general liability for anyone supplying chattels, whether for commercial or gratuitous use, knowing or having reason to know they are dangerous. The presence of expert testimony that the towrope was old and frayed, and Mason's inability to recall its age or acquisition, created a triable issue of fact as to whether Mason, as a supplier of equipment, owed appellant a duty of care to provide non-defective equipment. Therefore, the primary assumption of risk doctrine does not automatically protect Mason in his capacity as an equipment supplier.
Concurring - Lambden, J.
Concurred.
Concurring - Ruvolo, J.
Concurred.
Analysis:
This case significantly clarifies the scope of the primary assumption of risk doctrine, particularly when an injury involves both co-participant activity and allegedly defective equipment. It establishes that even within a sporting context, a distinct duty of care arises for individuals who supply equipment, whether gratuitously or commercially. This ruling prevents the primary assumption of risk from being an absolute bar to recovery in all sports-related injury cases, ensuring that negligence in providing unsafe equipment can still be litigated. Future cases will need to carefully distinguish between risks inherent to the sport itself and risks introduced by faulty equipment, potentially increasing liability for individuals or entities who provide gear for recreational activities.
