M. JAMES LORENZ, District Judge.
In this personal injury action, Defendant filed a motion for summary judgment, which Plaintiff opposed. For the reasons which follow, Defendant's motion is
Plaintiff, a California attorney proceeding pro se, was injured at SeaWorld San Diego, which is allegedly owned and operated by Defendant. Plaintiff purchased a ticket to use the bungee trampoline ("Equipment") at the Xtreme Zone of the park. Before obtaining permission to use the Equipment, Plaintiff was required to and did read and sign a liability waiver ("Release"). A SeaWorld employee ("Attendant") was then assigned to Plaintiff. He outfitted Plaintiff with a harness, which was placed around his waist, and two bungee cords, one connected to each hip. The Attendant instructed Plaintiff not to flip until the Attendant determined that it was safe to do so. When the Attendant instructed him to do so, Plaintiff started to flip. Before and when he began to flip, Plaintiff's arms were outstretched as he held on to the bungee cords. On his first and only flip, Plaintiff experienced pain in his left arm. He immediately stopped and left the Equipment to seek first aid. Plaintiff later learned he had torn a tendon in his left biceps.
Plaintiff filed a negligence action in state court. Defendant removed it to this court based on diversity. Subsequently, Plaintiff amended the complaint. In the operative complaint, Plaintiff alleged claims for strict products liability — design defect, strict products liability — failure to warn, breach of express warranties — intended use, breach of implied warranties — intended use, negligent products liability — design defect, negligent products liability — failure to warn, declaratory judgment, gross negligence, negligence per se and negligence.
Defendant moved for summary judgment. Rule 56 of Federal Rules of Civil Procedure empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c).
The moving party's burden on summary judgment depends on whether it bears the burden of proof at trial with respect to the claim or defense at issue. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." See C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). If the moving party does not bear the burden at trial, it can meet its burden on summary judgment by pointing out the absence of evidence with respect to any one element of the
If the movant meets its burden on summary judgment, the burden shifts to the nonmovant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324, 106 S.Ct. 2548. In this regard, the nonmovant must "go beyond the pleadings" and rely on "evidentiary materials" such as his "own affidavits, or ... the depositions, answers to interrogatories, and admissions on file" to designate specific facts in opposition to the summary judgment motion. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). These evidentiary materials must show that genuine factual issues remain which "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmovant does not meet this burden by showing "some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When ruling on a summary judgment motion, the nonmovant's evidence is to be believed, and all justifiable inferences are to be drawn in his or its favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate inferences are jury functions, and are not appropriate for resolution by the court on a summary judgment motion. Id.
Defendant moved for summary judgment, arguing essentially that the claims are precluded by the doctrine of assumption of risk, that the products liability and breach of warranty doctrines do not apply to it and that, to the extent not barred by these legal theories, Plaintiff lacks evidence to prove his claims. California substantive law applies in this diversity action. See Intri-Plex Technol., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) & Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Defendant argues Plaintiff's gross negligence claim should be dismissed for lack of evidence and that his remaining negligence claims are barred by the doctrine of contractual express assumption of risk. "An express assumption of risk is a complete defense to a negligence claim." Moser v. Ratinoff, 105 Cal.App.4th 1211, 1217, 130 Cal.Rptr.2d 198 (2003). It is undisputed that Plaintiff signed a Release waiving claims connected to his use of the Equipment.
Plaintiff argues that the Release should not be enforced under California's public policy to protect consumers from injuries caused by defective products.
Plaintiff specifically contends, however, that his case presents a public safety issue rather than a recreational activity issue because Defendant's activity was regulated under the Permanent Amusement Ride Inspection Program, Cal. Labor Code § 7920 et seq., which includes multiple requirements to ensure equipment
This issue is raised in the first amended complaint, where Plaintiff alleged Defendant's business was regulated under laws pertaining to amusement parks and violated pertinent legal requirements. (First Am. Compl. at 15, 23 (negligence per se).) In its motion, Defendant argues Plaintiff cannot maintain a claim of negligence per se for two reasons.
First, Plaintiff testified he was "not aware of any laws, statutes, or regulations that [Defendant] breached or allegedly violated in connection with the bungee trampoline ride." (Joint Statement at 5.) Defendant argues for summary judgment based on this testimony. The purpose of discovery, including depositions, is to elicit evidence rather than legal argument. Plaintiff's testimony therefore does not preclude him from making a legal argument in opposition to Defendant's summary judgment motion. Defendant's first argument is therefore rejected.
Second, Defendant points to Certificates of Compliance, which show that its Equipment met the requirements of Title 8, California Code of Regulations Section 344.7(b). (Burton Decl. at 2 & Exh. 4.) The certificates show that the Equipment passed a safety inspection. See 8 Cal.Code Reg. § 344.7(b). Plaintiff does not contend that the Equipment failed to pass a safety inspection. He argues that the Attendant was not trained on the safe use of the Equipment as required by law. He suggests Defendant violated the Permanent Amusement Ride Inspection Program because his Attendant failed to instruct him not to grip the bungee cords. (See Wallace Decl. ¶ 2; Suppl. Wallace Decl. at 2.) This evidence supports a reasonable inference that the Attendant was not properly trained on how to safely use the Equipment. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (all justifiable inferences drawn in the nonmovant's favor). Defendant did not address this argument in his reply. Accordingly, there is a genuine issue of fact whether Defendant violated the Permanent Amusement Ride Inspection Program and thus precluded reliance on the Release as a defense to negligence per se.
In the alternative, Defendant relies on the doctrine of primary assumption of the risk, another "exception to the general rule of due care frequently applied in cases involving sports." Eriksson v. Nunnink, 191 Cal.App.4th 826, 838, 120 Cal.Rptr.3d 90 (2011).
The issue presented by Plaintiff is whether risk of injury resulting from gripping bungee cords with outstretched arms is inherent in bungee jumping on a trampoline. Whether a particular risk is an inherent part of a recreational activity is an issue of law "necessarily reached from the common knowledge of judges." Rosencrans, 192 Cal.App.4th at 1083, 122 Cal.Rptr.3d 22 (citation omitted). Bungee trampoline jumping is an activity where persons tethered to bungee cords use a trampoline to jump and flip in the air. Given the nature of the activity, injuries to arms arising from flipping appear to be an inherent risk. However, as an owner/operator offering this recreational activity, Defendant has a duty to provide a reasonably safe facility. See id. at 1084, 122 Cal.Rptr.3d 22; Solis v. Kirkwood Resort Co., 94 Cal.App.4th 354, 364-66, 114 Cal.Rptr.2d 265 (2001). This duty requires Defendant to minimize the risks insofar as possible without altering the nature of the sport. Rosencrans, 192 Cal.App.4th at 1084, 122 Cal.Rptr.3d 22 (internal quotation marks and citations omitted); see also Solis, 94 Cal.App.4th at 364-66, 114 Cal.Rptr.2d 265. Plaintiff claims he was injured because he performed a flip while gripping the bungee cords with outstretched arms, when he should have been instructed to hold his elbows at his side and not to grip the bungee cords but the black straps offered for this purpose. (Wallace Decl. ¶ 2; Wallace Suppl. Decl. at 2-3.) The Attendant cleared Plaintiff to flip without providing these instructions and assuring Plaintiff's compliance before clearing him. (See Wallace Decl. ¶ 2; Suppl. Wallace Decl. at 2-4.) Instructing the participants would not require them to abandon the integral part of the activity, i.e., jumping on a trampoline while tethered to bungee cords, but would likely minimize the risk of injury. (See Wallace Decl. ¶ 3 and discussion below regarding causation.)
Accordingly, Plaintiff raised a genuine issue of fact with respect to primary assumption of the risk as it pertains to his ninth cause of action for negligence per se. Because there is a genuine issue of fact whether the Release or the primary assumption of the risk bar Defendant's liability on this claim, its motion is
Defendant maintains summary judgment should be granted on the gross negligence claim because Plaintiff has no evidence to support gross negligence or that the alleged gross negligence caused his injury. The court disagrees.
Plaintiff's evidence consists of his affidavits and excerpts from the manufacturer's and Defendants' internal instructions for the safe operation of the Equipment. Defendant objected to almost every part of Plaintiff's affidavits. (Evidentiary Objections to Decl. of John Wallace; Evidentiary Objections to Suppl. Decl. of John Wallace.) Unless expressly noted otherwise herein, the objections are overruled. Plaintiff is competent to provide evidence about what transpired during the incident in which he was involved. Furthermore, he is competent to provide evidence about his injury and how he sustained it. Although Plaintiff could have offered evidence from an expert, he was not required to do so. See Fed.R.Evid. 702 (expert opinion may be offered (emphasis added).) Defendant has not cited any binding authority to the contrary. Furthermore, Plaintiff's evidence is not precluded by Federal Rule of Evidence 701. To the extent Defendant argues that Plaintiff's affidavits lack credibility or are factually inaccurate, this is not an issue for summary judgment. See Anderson, 477 U.S.
Gross negligence was expressly excluded from the Release. (Joint Statement at 3.) Even if it were not, as a matter of law, a release is not enforceable against gross negligence because "public policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care." Janeway, 41 Cal.4th at 777, 759, 62 Cal.Rptr.3d 527, 161 P.3d 1095 (footnote omitted, emphasis in original), citing Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 101, 104, 32 Cal.Rptr. 33, 383 P.2d 441 (1963).
Gross negligence is not so much a cause of action as it is a "limitation on the defense that is provided by a release." See Janeway, 41 Cal.4th at 780 n. 58, 62 Cal.Rptr.3d 527, 161 P.3d 1095; see also Eriksson, 191 Cal.App.4th at 857 n. 18, 120 Cal.Rptr.3d 90 (no distinct cause of action for gross negligence under California law absent statutory basis). Plaintiff is not required to anticipate the defense of release; "instead, the defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand." Janeway, 41 Cal.4th at 780 n. 58, 62 Cal.Rptr.3d 527, 161 P.3d 1095.
Gross negligence is different from ordinary negligence in that ordinary negligence "consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm," whereas gross negligence requires "a want of even scant care or an extreme departure from the ordinary standard of conduct." Janeway, 41 Cal.4th at 753-54, 62 Cal.Rptr.3d 527, 161 P.3d 1095 (internal quotation marks and citations omitted.) Summary judgment may be granted when the claim does not amount to more than ordinary negligence, although, generally, "it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence." Id. at 767, 62 Cal.Rptr.3d 527, 161 P.3d 1095, quoting Decker v. City of Imperial Beach, 209 Cal.App.3d 349, 358, 257 Cal.Rptr. 356 (1989).
Defendant argues Plaintiff cannot show gross negligence because he does not contend that Defendant intentionally caused him harm or knowingly did anything to put him in harm's way. (See Joint Statement at 4-5.) Intent or knowledge are not required to show gross negligence. What is required is "a want of even scant care or an extreme departure from the ordinary standard of conduct." Janeway, 41 Cal.4th at 753-54, 62 Cal.Rptr.3d 527, 161 P.3d 1095 (internal quotation marks and citations omitted.) This "connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results." Eriksson, 191 Cal. App.4th at 857, 120 Cal.Rptr.3d 90 (internal quotation marks, ellipsis and citation omitted). "[M]ost courts have considered that `gross negligence' falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind." Decker, 209 Cal.App.3d at 358, 257 Cal.Rptr. 356. That Plaintiff does not contend Defendant harmed him intentionally or knowingly therefore does not preclude him from raising a genuine issue whether Defendant was grossly negligent.
This was contrary to the manufacturer's Operations and Maintenance Manual, which stated, "Warning: never let anyone hold onto the bungee cords." (Suppl. Wallace Decl. at 2.) Consistently, Defendant's operating procedures directed that a black strap be attached to each bungee cord and to the harness, and indicated that the strap was used for grip. (Id. at 3.) The procedures directed the Attendant to say, "Please place your hold onto the black straps at all times and do not let go." (Id., quoting operating procedures.) Before clearing a guest to start jumping, attendants were directed to perform a "safety check," which included "[e]nsur[ing] guests [were] holding on with both hands." (Id., quoting operating procedures.) As can be seen in a photograph of a person strapped in the Equipment, if a person is holding onto the straps, as opposed to the bungee cords, his arms are not outstretched and the elbows are bent at the side of the person's body. (Burton Decl. Exh. 1.) Not only was Plaintiff not warned to refrain from gripping the bungee cords or instructed by his Attendant to hold onto the black straps, the black straps were not provided to him at all. (Id. at 4; see also Wallace Decl. ¶ 2.) Plaintiff was also not instructed that his elbows should be at his side as opposed to having his arms outstretched. (Wallace Decl. ¶ 2.)
When Plaintiff was at the apex of his first and only flip, "the bungee cords ... pulled [his] arms in a direction opposite to the gravitational pull of [his] legs, which was downwards, toward the trampoline." (Id. ¶ 3.) He felt pain in his left arm and immediately left the Equipment. (Id. ¶ 2.) He later learned that he had torn a tendon. (Id.)
Based on the foregoing, drawing all justifiable inferences in Plaintiff's favor, see Anderson, 477 U.S. at 255, 106 S.Ct. 2505, a jury could reasonably conclude that the manufacturer's and Defendant's procedures were clear and easy to follow. The procedures were provided to ensure safety of the guests using the Equipment. Compliance with the procedures was easy to ascertain just by looking at the guest and the Equipment. Because the Attendant instructed Plaintiff he was safe to flip although the lack of compliance with safety procedures would be obvious to anyone familiar with them and the Equipment, a jury could reasonably infer either that Defendant allowed an untrained person to serve as the Attendant or that the Attendant simply did not care about the outcome. Either way, the jury could reasonably find Defendant's conduct to constitute "a want of even scant care or an extreme departure from the ordinary standard of conduct." See Janeway, 41 Cal.4th at 753-54, 62 Cal.Rptr.3d 527, 161 P.3d 1095.
Defendant also claims that Plaintiff has no evidence that the alleged gross negligence
Accordingly, Plaintiff raised a genuine issue of fact with respect to the gross negligence limitation to the defense provided by the Release. Because there is a genuine issue of fact whether the Release bars Defendant's liability, its motion for summary judgment on the eighth cause of action for gross negligence is
As to the remaining negligence claims, public policy does not preclude enforcement of the Release. See Janeway, 41 Cal.4th at 760, 62 Cal.Rptr.3d 527, 161 P.3d 1095. The Release provided in pertinent part as follows:
(Joint Statement at 2-4 (emphases in original); see also Ortiz Decl. Exh. C.) "To be effective, ... a release must be clear, unambiguous, and explicit in expressing the
Plaintiff argues that the Release he signed was ambiguous and therefore should not be enforced to bar Defendant's liability for negligence. "The determination of whether a release contains ambiguities is a matter of contractual construction. An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing." Benedek, 104 Cal. App.4th at 1357, 129 Cal.Rptr.2d 197 (internal quotation marks and citations omitted). Although Plaintiff complains that the Release is vague and overbroad in scope, he does not suggest any alternative meaning or point to any extrinsic evidence to assist in the interpretation.
Benedek, 104 Cal.App.4th at 1357-58, 129 Cal.Rptr.2d 197 (internal quotation marks and citations omitted).
The Release Plaintiff signed is clear, unambiguous and explicit. See Benedek, 104 Cal.App.4th at 1358-59, 1361, 129 Cal.Rptr.2d 197. It clearly expressed the parties' intent to release Defendant from all personal injury claims, with the exception of gross negligence, "resulting from, arising out of or in any way connected with [Plaintiff's] preparation for or participation in the ... bungee trampoline activities, ... whether caused in whole or in part by the negligence and/or fault of [Defendant] or otherwise." (Joint Statement at 3 (emphases omitted).) Plaintiff's claim that he was injured while participating in bungee trampoline jumping and that his injury was caused by Defendant's negligence falls within the unambiguous scope of the release.
Accordingly, Plaintiff has failed to raise a genuine issue whether the Release is enforceable to bar Defendant's liability on the ordinary negligence claims as alleged in the fifth, sixth and tenth causes of action.
Next, Defendant argues that Plaintiff's third cause of action for breach of express warranties — intended use and fourth cause of action for breach of implied warranties — intended use are also precluded by the Release. Plaintiff did not address this argument in his opposition. In
Defendant also maintains that Plaintiff's remaining product liability claims, first cause of action for strict products liability — design defect and second cause of action for strict products liability — failure to warn,
The doctrine of strict products liability applies to manufacturers, retailers, and "others similarly involved in the vertical distribution of consumer goods, including lessors of personal property...." Ontiveros v. 24 Hour Fitness Corp., 169 Cal.App.4th 424, 430-31, 86 Cal.Rptr.3d 767 (2008) (citing cases). The relevant "distinction for purposes of the products liability analysis [is] between a transaction where the primary objective is the acquisition of ownership or use of a product and one where the dominant purpose is to obtain services." Id. at 431, 86 Cal.Rptr.3d 767 (internal quotation marks, citation and ellipsis omitted). Accordingly, "[i]n a given transaction involving both products and services, liability will often depend upon the defendant's role." Id. at 432, 86 Cal.Rptr.3d 767. Plaintiff admits that Defendant provided him with both products and services when he participated in bungee trampoline jumping. (See Opp'n at 13.)
The facts of this case as presented by Plaintiff's evidence are analogous to the facts in Ontiveros and Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248, 38 Cal.Rptr.2d 65 (1995). In Ferrari a white water rafting operator provided, for a fee, a raft, white water rafting safety instructions, and guides for the activity. Ferrari, 32 Cal.App.4th at 251, 38 Cal.Rptr.2d 65. Plaintiff claimed he was injured because the raft was defective, arguing, like Plaintiff here, that the raft was a product and that the defendants were subject to strict liability as licensors of the raft. Id. at 258, 38 Cal.Rptr.2d 65. The court granted summary judgment on the product liability claim, finding that the predominant purpose of the transaction was to provide a service rather than a product in that the white water rafting equipment was incidental to the service. Id. at 259, 38 Cal.Rptr.2d 65 ("Defendants did not provide plaintiff with a raft for her to use. They provided a service, i.e., recreational raft transportation.... Defendants provided all the materials for the trip, instructions on rafting safety, and guides to perform the labor and conduct the activities. Use of the raft ... was merely an incident to this service.").
In Ontiveros a fitness club member was injured while using exercise equipment and sued the defendant for strict products liability. See 169 Cal.App.4th at 428, 434, 86 Cal.Rptr.3d 767. The membership agreement provided, among other things, that the defendant was providing "recreational services." Id. at 427, 86 Cal.Rptr.3d 767. The plaintiff claimed she never availed herself of any services provided by the defendant, but just used the
Here the Release stated that was "[i]n consideration for [Plaintiff] being allowed to participate in ... bungee trampoline activities." (Joint Statement at 2.) Nothing in the Release indicates that it was merely for Equipment rental. Plaintiff presented no evidence to support this assertion
Finally, Defendant requests attorney's fees based on the indemnity provision in the Release. (See Joint Statement at 3.) Plaintiff opposes the request, relying on Myers Bldg. Indus., Ltd. v. Interface Tech., Inc., 13 Cal.App.4th 949, 962-63, 965-66, 17 Cal.Rptr.2d 242 (1993) and Bldg. Maint. Serv. Co. v. AIL Sys., Inc., 55 Cal.App.4th 1014, 1029-30, 64 Cal.Rptr.2d 353 (1997), which express the principle that indemnity clauses generally apply to third party claims and not to claims between the contracting parties themselves. Defendant does not disagree. Furthermore, two claims survive Defendant's summary judgment motion. Therefore, to the extent Defendant may be entitled to any attorney's fees, its request is premature. Based on the foregoing, the request for attorney's fees is
For the foregoing reasons, Defendant's motion for summary judgment is
