By James H. (Jim) Moss, Senior Writer
No crumple zones, no skid marks, and nothing from the accident was left for the court to rely upon other expert witnesses in a surfing collision.
California never let go of the assumption of the risk as a defense for sports and recreational injuries, even when all other states were merging assumption of the risk into comparative negligence. The California Supreme Court, recognizing problems with that merger issued Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870. That 32-year decision still controls how parties engaging in recreational activities are to assume the risks of the sport and is now quoted for allowing assumption of the risk to be used as a stand-alone defense in most states.
This doctrine was adopted by California and many more states followed, so that sports would continue. Removing the risks in any sport or activity turned all sports into padded tiddlywinks competition. If you eliminate the risks of falling in football, you eliminate the reason to watch or engage in the sport. If you eliminate the waves and other surfers from surfing you have people standing on long boards on the sand. Not fun to do and not fun to watch.
Under Knight, the assumption of the risk doctrine applies both to sports and recreational activities “‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’”Each participant in the sport or recreational activity has no duty to protect others in the sport or activity from the inherent risks of the activity. They do have a duty to not increase the risks to other participants in the sport. “[D]efendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport.”
In this case, that meant that when another surfer enters the wave both surfers must protect themselves and try not to hurt the other surfer. But the issue is not an absolute requiring all surfers to keep each other safe.
Here the two surfers, plaintiff and defendant, were surfing at Miramar Beach in Montecito, California. The defendant was riding a longboard and was not wearing a leash. (A leash is a rope or specially designed line that attaches to the surfer’s ankle and the surfboard so the surfboard does not get too far away from the surfer.) The defendant entered the wave after the plaintiff was already in the wave and this forced the plaintiff to exit the wave into whitewater, in his opinion. He ultimately collided with the fins on the defendant’s board causing him injury.
The court looked at the facts aided by expert witnesses for both the plaintiff and the defendant. Other than the statements of the two surfers, there were no other witnesses or any way to support or deny either statement. The court felt it must rely on the experts, finding the plaintiff and defendant might not have credible memories.
Although both expert witnesses stated there were unwritten rules about surf etiquette, there were no rules, regulations, or statutes that detailed how surfers were to act with each other. Generally, a person entering a wave must stay clear of other riders in the wave. However, it is common for surfers to enter the wave and knock other surfers already in the wave. Both experts testified to this issue. True, it did not meet the unwritten etiquette rules, but it happened all the time. It was a common risk of surfing.
Again, the expert witnesses agreed, that generally everyone is expected to wear a leash when surfing. However, it was well known that longboarders might not wear a leash because it limited the speed and ability to traverse the big boards and control them. The plaintiff claimed the lack of the leash allowed the defendant’s board to strike him causing his injuries. According to the court, that was not a negligent act in surfing. There was no negligence and the plaintiff assumed any risk.
The plaintiff also argued the defendant acted “Recklessly or Increased the Inherent Risks of Surfing.” A defendant has no duty to protect the plaintiff from the inherent risks of the sport; however, a defendant can be liable if the defendant increases the risk to the plaintiff. The court found the plaintiff’s expert did not list ways the defendant increased the risk to the plaintiff, but only listed ways the defendant could be more cautious while surfing.
Recklessness or increasing the risk to another participant in the sport or activity requires actions on the part of the defendant that increase the inherent risk or actions that are done so in a way that would more than likely injure another participant.
The court also found that there may be unwritten rules of etiquette in surfing, but no one follows them. The plaintiff admitted seeing other surfers violate the etiquette rules and that his actions also violated some of the rules.
Football would be boring if you were not allowed to block or tackle for fear of hurting an opposing player and being sued. The acting instruction that seems to go with soccer would no longer exist because players would not be allowed to get close to another player, let alone run each other down. E-sports would quickly become the best way of getting a scholarship to go to college. In other words, to maintain our current level of physical activity in sports and recreation, players of any game, competition, or activity assume the risks of the game, competition, or activity.
“’By eliminating liability for unintended accidents, the doctrine [of primary assumption of the risk] ensures that the fervor of athletic competition will not be chilled by the constant threat of litigation from every misstep, sharp turn and sudden stop.’”
Otherwise, you should learn the game of tiddlywinks and always wear eye protection… Maybe helmet too.
Olson v. Saville, 2d Civ. B324465 (Cal. App. Jan 17, 2024)
James H. (Jim) Moss has distinguished himself through his career as an attorney specializing in Outdoor Recreation Law. He was recently awarded the Outstanding Eagle Scout Award upon nomination by the Greater Colorado Council, BSA Council, and the Boy Scouts of America. This award is granted to Eagle Scouts who distinguish themselves in their life work and who share their talents with their communities on a voluntary basis.
