Motion for Summary Judgment
The Defendants Candace Edwards, David Edwards, and Kimberly Edwards motion seeking summary judgment in their favor with respect to the plaintiff?s single cause of action for general negligence against them is denied.
First Amended Complaint Allegations:
Plaintiff Heather Gallant alleges one cause of action for general negligence against defendants Candace Edwards, David Edwards, and Kimberly Edwards.? The plaintiff alleges that the defendants ?negligently controlled, operated, managed and maintained? a surfboard and that their ?negligence, recklessness, carelessness, and unlawfulness? with respect to the surfboard caused of plaintiff?s injuries.
The defendants? answer alleges that the cause is barred by the assumption of the risk and primary assumption of the risk doctrines.
Defendant?s MSJ Authorities:
When a defendant seeks summary judgment, it bears the burden of proof by a preponderance of the evidence to establish that an action has no merit, that plaintiff cannot prove an element or some elements of a cause of action, or that a complete defense is established as a matter of law entitling the defendant to judgment.? See CCP ? 437c(p)(2); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal. App. 4th 1282, 1287.
?In as much as summary judgment is a drastic procedure and should be used with caution, the moving party?s papers are strictly construed, while the opposing party?s papers are liberally construed.?? Committee to Save Beverly Highland Homes Ass?n v. Beverly Highland (2001) 92 Cal. App. 4th 1247, 1260.? A court may not make credibility determinations, or weigh the evidence, on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party.? See McCabe v. American Honda Motor Corp. (2002) 100 Cal. App. 4th 1111, 1119.? If there is any doubt about granting a motion for summary judgment, then the motion should be denied.? See Miller v. Bechtel Corp. (1983) 33 Cal. 3d 868, 874.
The defendant must present evidence and cannot simply argue that the plaintiff does not possess and cannot reasonably obtain needed evidence. Id. at 854-855; Hawkins v Wilton (2006) 144 CA4th 936, 940. See Krantz v BT Visual Images (2001) 89 CA4th 164, 173, 107 CR2d 209 (defendants’ conclusory statements set forth in declarations submitted in support of summary judgment motion, which simply pointed to absence of evidence supporting plaintiff’s position, were insufficient to shift burden of production to plaintiff). See also Gaggero v Yura (2003) 108 CA4th 884, 890-893, 134 CR2d 313 (in action for specific performance of contract, defendant did not make prima facie showing that plaintiff could not establish one or more elements of his cause of action merely by alleging that plaintiff failed to proffer evidence he was ready, willing, and able to perform contract). A defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. App. 4th 826, 854-855 n23.
A defendant meets its burden of production by presenting evidence that would prevent a reasonable trier of fact from finding any underlying material fact more likely than not.
Assumption of the Risk Doctrine:
In cases involving ?primary assumption of risk? – – where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the peculiar risk of harm that caused the injury – – the doctrine continues to operate as a complete bar to plaintiff’s recovery. Knight v. Jewett (1992) 3 Cal. 4th 296, 314-315.?? Here the plaintiff, in choosing to participate in the activity of surfing, assumed the risk of being injured in a manner inherent in the sport of surfing; such would generally include being hit by another surfer?s board but, there are exceptions.
However, when the defendant does something that causes injury which is ?totally outside the range of ordinary activity involved in the sport,? the primary assumption of risk will not apply. Moser v. Ratinoff (2003) 105 Cal. App. 4th 1211, 1222.
Ordinarily, parents are not liable for the torts of their child unless they had reason to know that the child needed to be controlled or the child?s misconduct was willful. Singer v. Marx (1956)144 Cal. App. 2d 637, at 644; Civil Code section 1714.1(a) As such, parental liability may be imposed if the parent knows or has reason to know that he has the ability to control his child, and knows or should know of the necessity and opportunity for exercising such control.” (Robertson v. Wentz (1986) 187 Cal.App.3d 23 1281, 1288-1289.)
Defendants? Initial Burden:
The defendants Candace Edwards, David Edwards, and Kimberly Edwards have sustained their initial burden of presenting evidence which establishes the primary assumption of risk doctrine bars plaintiff?s entire action because the plaintiff and defendant Kimberly Edwards were co-participants in the sporting activity of surfing, and plaintiff alleges she was injured due to the negligence of defendant Kimberly Edwards in losing control of her surfboard in the ocean during this recreational activity.
The defendants have presented evidence that the plaintiff has no evidence showing that defendant Kimberly Edwards engaged in reckless conduct ?totally outside the range of ordinary activity involved in the sport? of surfing. The defendants have established that the plaintiff testified that no one told her that Kimberly Edwards was being careless and that she is not aware of Miss Edwards doing anything other than surfing at the time of the accident. (Undisputed fact nos. 7, 21, and 23.)? The defendant have presented evidence that the plaintiff testified that what happened to her is one of the dangers that she associated with surfing before the date of the accident.? (Undipsuted Fact no. 11.)? As such the defendants have sustained their initial burden of presenting evidence which creates a complete defense to the plaintiff?s negligence case of action.
Additionally, the defendants Candace Edwards and David Edwards have sustained their initial burden of presenting evidence which establishes Plaintiff does not possess any evidence that shows willful misconduct on the part of Kimberly Edwards sufficient to establish an exception to the general rule in California that parents are not liable for the torts of their child. The plaintiff specifically removed her intentional tort cause of action when she filed her first amended complaint. (Undisputed fact no. 6.)? The defendants have presented evidence which establishes that the Plaintiff testified that she is not aware of Kimberly Edwards doing anything other than surfing at the time of the accident and the no one told plaintiff that Miss Edwards meant to intentionally hit plaintiff with her surfboard. (Undisputed fact nos. 21-22.)? As such, the defendants have sustained their initial burden of presenting evidence that, plaintiff does not contend and does not have any evidence to show that Kimberly Edwards? conduct was intentional such as to support liability against her parents Candace and David Edwards.
Plaintiffs? Resulting Burden:
In response, the plaintiff has sustained her resulting burden with respect to her cause against Kimberly Edwards and her parents Candace and David Edwards.? The plaintiff has presented evidence to create a material issue of triable fact regarding whether the defendant Kimberly Edwards? conduct was ?totally outside the range of ordinary activity involved in the sport?.? The plaintiff has presented evidence which supports a finding that Kimberly Edwards increased the risks of injury associated with surfing when she violated accepted surfing rules and proceeded in a left direction on a “right’s only” wave which had been caught by plaintiff.? Dec. of Mike Frank, ?? 3-5.?? The plaintiff has presented evidence that when her board hit and injured the plaintiff, Kimberly Edwards was going in an unsafe direction on the wave. Id.
The plaintiff has presented evidence that although she understood and appreciated the risk of injury as it occurred in this case, she could not anticipate that other surfers, including defendant Kimberly, would act reckless and increase the risks inherent in surfing by breaking the rules of surfing and going the wrong way on a wave. (Dec. of Mike Frank, ?? 3-5.)? The plaintiff has presented evidence that people at the scene told her that this was more than an accident, and that? Kimberly had “dropped in” on plaintiff (i.e., where another surfer has claimed a wave by being in a deeper or more effective position at takeoff). Dec. of William Green Exhibit 1, Depo. of Heather Gallant, pp. 70:15-19, 71:13-15.)
Lastly, the plaintiff has presented evidence which supports a finding that Kimberly?s parents allowed her to surf despite the fact that she never had any formal surfing instructions and could not even recall what, if any, instructions her father provided to her concerning her own safety and the safety of others. (Exh. 2, pp. 15:21-16:2.) Such, is sufficient to create a material issue of triable fact with respect to their liability.
Objections To Plaintiff’s Evidence Submitted In Opposition To Motion For Summary Judgment:
Objections 1 – 9 are Overruled as to each Objection to Mr. Frank?s declaration.
Mr. Frank has provided a foundation for his testimony regarding what he observed as a percipient witness on the day of the accident.? His use of the term ?carelessly? in describing how the board shot out is not an improper legal conclusion but rather a ordinary descriptive term to describe what he personally viewed.
Furthermore, Mr. Frank has provided sufficient facts to support a finding that he has knowledge about surfing such that he can provide opinions regarding what proper surf etiquette is for attempting to surf on the same wave as another surfer (ie. from the right or left side).? The defendant has not established that such is necessarily within the common knowledge of a lay person.
Mr. Frank has provided facts which qualify him to provide opinion testimony as an expert in the field having surfed for many years and instructed on surfing as well as training his own son who is now a professional surfer.? Additionally, he has provided a factual foundation to allow him to testify as a witness regarding what is proper surf etiquette at this particular surf location (ie. Doheny beach).? Basically, he has explained in his declaration that he knows about surfing generally and knows about surfing in Doheny.? There is nothing before this court which would support a finding that his knowledge needs to be supported by education or formal training. There is nothing before this court which supports a finding that a lay person would have this same knowledge.
Mr. Frank?s testimony is not inconsistent with the plaintiff?s deposition testimony.? The cited testimony from the plaintiff?s deposition that she did not testify that Mr. Frank told her his views regarding defendant traveling the wrong way on the wave is not inconsistent with Mr. Frank?s testimony that the defendant was surfing the wrong way on the wave at the time the accident occurred.? Her testimony that Doheny is mainly a right breaking beach is not inconsistent with Mr. Frank?s testimony that the spot where the accident occurred was and is a ?right-only spot for surfing.?