In California, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. Knight v. Jewett (1992) 3 Cal.4th 296, 315. However, under the doctrine of primary assumption of risk, a defendant property owner generally owes no duty to protect a participant in a sports or sports-like activity against risks that are inherent in that activity. Id. In a sports setting, for example, although moguls on a ski run may pose a risk of harm to skiers if they did not exist, the risks posed by the moguls are considered to be part of the sport of skiing and a ski resort has no duty to eliminate them.
One issue that has arisen over the years is whether an activity is subject to the doctrine of primary assumption of risk when it involves transport on a public thoroughfare. In Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, the Court of Appeal ruled that a triable issue of fact existed as to whether an 11 year old using a motor scooter on a public side walk was engaged in a sport or recreational activity. An accident involving a stick ball game or touch football played on a public street is likely covered by the doctrine of primary assumption of risk. An accident involving someone using a motor scooter on a public street probably is not. But what about an accident involving a mode of transport which is primarily a recreational activity?
In the context of skate boards, at least, some light has been shed by the recent California Court opinion published in Richard Lee Bertsch v. Mammoth Community Water District, et al, (2016) 247 Cal.App.4th 1201 ("Bertsh Case"). In the Bertsch Case, Brett Bertsch, a minor, tragically lost his life while skateboarding in September 2011 with his brother in the resort town of Mammoth Lakes. The two boys were travelling downhill on a public street without helmets when the front wheels of Bertsch's skateboard hit a small gap between the paved road and the cement collar surrounding a manhole cover (owned by a defendant water district), stopping the wheels and ejecting Bertsch from the board. The impact of Bertsch's skull with the pavement resulted in a traumatic brain injury and death.
Bertsch's family brought a wrongful death action against various defendants including the Mammoth Community Water District, the entity responsible for inspecting and maintaining the manhole cover, and the Sierra Star Community Association, the owner of the road where the accident occurred.
Insofar as the facts, Bertsch's father and brother were staying at a friend's condominium in Mammoth Lakes. On the morning of the accident, Bertsch and his brother spent some time "cruising" around the neighborhood on their skateboards "for fun". From the condominium, they traveled down Sierra Star Parkway, made a left turn onto West Bear Lake Road, and then pushed their way up an incline so they could turn around and come down a hill. The father was operating a motor vehicle and planned to meet his two sons at the intersection at the bottom of the hill. Bertsch suffered his injuries when traversing down the hill.
After suit for wrongful death was filed, both the Water District and the Association moved for Summary Judgment. As relevant to this article, both entities asserted that the plaintiff's lawsuit was barred by the doctrine of primary assumption of risk. The defendants argued that 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". In essence, the defendants argued that the decedent assumed the risks inherent in skateboarding including the risk of falling, and that those defendants owed no duty to protect the decedent against any such risk. Plaintiff's counsel argued that the doctrine of primary assumption did not apply because the decedent was "not engaged in a sport or sport-like activity" but was "simply cruising around" on a skateboard on a public thoroughfare.
The trial court granted Summary Judgment explaining that the decedent had been operating a skateboard for the "thrill and joy of cruising". The trial court distinguished Childs v. County of Santa Barbara, ruling that the skateboarding by the decedent was for recreation. The Court of Appeal Affirmed.
The key issue with the Bertsch Case is that skateboarding, which can be considered to be a means of transportation, can also be the subject of the doctrine of primary assumption of risk. While not all skateboard personal injury cases may be the subject of the doctrine of primary assumption of risk, where there is evidence that the plaintiff is, for example, traversing a downhill street, the doctrine will very likely apply.
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