Trial Court’s Decision Affirmed; Defendant Held Not Liable for Surfing Injury

May 31, 2024

By Guoxin Sun & Michael S. Carroll, PhD

This Appellate decision stems from a case that involves Mark Olson and Patrick Saville, who were both part of a surfing group. Saville was riding a custom longboard without a leash at Miramar Beach in Montecito, when Olson caught a wave. Olson alleged that Saville deliberately cut off his path of travel and continued surfing forward, ignoring his evasive action, which led to a collision in which Olson was struck by Saville’s board. Olson pursued legal action against Saville for liability of negligence, arguing that Saville’s actions were reckless and displayed a wanton disregard for safety of others, particularly because he was not using a leash and had a sharp fin on his longboard.

Saville moved for summary judgement on the grounds that Olson’s negligence cause of action was barred under the primary assumption of risk doctrine. The trial court granted Saville’s motion for summary judgement, which dismissed Olson’s claim for liability. The court determined that the inherent risks of the sport of surfing included surfers “dropping in” on each other, not wearing leashes while riding longboards of the type used by Saville, and using surfboard with sharp fins. Olson appealed the decision, not disputing the application of the primary assumption of the risk but contending that there were triable issues of material fact regarding Saville’s recklessness and the heightened risks he posed. The appellate court conducted a de novo review of the case, construing the evidence in support of Olson and resolving any doubts concerning evidence in his favor. The appellate court exercised discretion regarding the following legal issues.

Primary Assumption of Risk

First, the court determined that the application of the doctrine of primary assumption of risk was appropriate to this case by considering the related case law, published materials, and documentary evidence, in addition to the common experience. The court took into account the following factors:

  1. Principle of Primary Assumption of Risk Doctrine: The court applied the doctrine of primary assumption of the risk, which bars liability for injuries caused by a negligent participant in a sport to another participant if those injuries were caused by risks inherent in the activity. It rests on a need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.
  1. Case Precedent: In California, the assumption of risk doctrine had been applied to cases in a variety of sports, particularly in skiing. The court considered the precedents set by skiing cases, which could exert a significant influence on the current case involving surfing. The comparison drawn between skiing and surfing highlighted common characteristics, such as the use of a nature propulsion mechanism, similar equipment, and right-of-way. The resemblance supported applying the assumption of risk doctrine to surfing.
  1. Expert Testimony: The court received expert testimony on the sport of surfing for the purpose of determining whether the inherent risks of the activity were increased by the defendant’s conduct. Ian Cairns, a champion surfer and coach, opined that surfing was an extreme sport with many inherent risks, including the known risk of collision. He emphasized that though the sport was largely regulated by unwritten surfing etiquette encompassing priority, right-of-way, and sharing waves, actions violating rules of surfing etiquette like choosing to forego leashes and modifying boards were common practices. Additionally, surfers were supposed to be aware of both the inherent risks of surfing and the potential harm from etiquette violations.


Olson’s expert did not oppose the core components of Cairn’s opinion, including that surfers commonly collided and lost control of boards; that boards had sharp fins that can cause injury; and that some surfers chose to forego leashes because they can inhibit speed and agility. Consequently, the appellate court concurred with the trial court that the primary assumption of risk doctrine precluded Olson’s claim of negligence unless there was evidence demonstrating that Saville acted recklessly or increased the inherent risks of surfing.


Olson’s expert, Shaun Tomson, argued that Saville’s conduct was reckless and increased the risks of surfing based on several factors:

  1. Surfing Code and Rules of Etiquette: Tomson contended that Saville failed to adhere to the Surfers Code and Rules of Etiquette, thereby increasing the risk of harm to others. He further cited examples of such etiquette, including observing the right of way of others, looking for other surfers before entering the wave, avoiding cutting off others’ path, holding onto one’s own board, wearing a leash, and being aware of other surfers nearby. Tomson expressed the view that Saville’s actions exhibited a conscious and reckless disregard for the safety of fellow surfers.
  1. Surfing Policy: Tomson supported his conclusion by citing the “Leash/Legrope Policy” from the International Surfing Association (ISA) Rule Book as further evidence, asserting ISA as “the World Governing Body for surfing.” While the policy did mandate leash/legrope use at events, it also allowed riders discretion for free surfing, stating the use of a leash was recommended if there was a possible danger to third parties, but it was not mandatory. Despite Tomson’s argument that the use of a leash was advisable in such situation, its persuasiveness was limited given that the accident occurred within the realm of leisure sport rather than professional sport.
  1. Case Precedent: Olson referenced the Campbell v. Derylo (1999) California appellate decision in support of his case, in which the appellate court overturned the trial court’s grant of summary judgement for a plaintiff based on the grounds of primary assumption of risk involving a snowboarding accident. In Campbell, the court ruled that the defendant’s failure to use a retention strap increased the inherent risk of injury to coparticipants from a runaway snowboard. The court cited both a local ordinance as well as a Skier Responsibility Code posted at the ski resort, requiring the use of a retention strap. Furthermore, it was accepted that using a strap would not impede or alter the sport of snowing board or chill or deter vigorous participation.

However, the appellate court distinguished Olson’s case from that of Campbell based on the fact that there were no regulations governing the use of surfboard leashes, nor were there posted signs at Miramar Beach. Additionally, Olson did not contest Cairn’s opinion that a leash could change the nature of the sport of surfing by interfering with a longboard surfer’s footwork and speed and by creating tripping hazards to surfers who walked on their board. As such, the court found a clear distinction between these two cases, with no application of case precedent.

Acknowledgement of Risk

Olson admitted several facts about the sport of surfing, including the routine nature of surfing without a leash, a leash’s obstruction effect to a surfer’s movements, the chances/likelihood of a collision between surfers, observation of loss of control of the board, and the likelihood of being cut off from a wave. These facts lent credence to the argument that a failure to follow the rules of etiquette is widespread among surfers.

Preserving Athletic Enthusiasm

In addition, the court took into consideration the role of the primary assumption of risk doctrine in safeguarding the flourishing of athletic activities. In sports, this doctrine shields sport participants from liabilities for unforeseeable accidents and avoids a flood of litigation related to sport injury, preserving the enthusiasm of athletic competitors.


Because Olson had fully acknowledged the inherent risks of surfing, the principle of primary assumption of risk doctrine, which barred ordinary negligence, was applied. Olson needed to demonstrate Saville’s recklessness within his actions in order to establish liability and thus recover damages. Unfortunately, Olson’s expert only described that Saville was supposed to reduce the risks of sport by exercising a duty of care, which did not rise to the level of recklessness. Even though both parties’ experts agreed on Saville’s breach of surfing etiquette, there was a lack of direct evidence to sustain an absolute prohibition against cutting off other’s path, surfing without a leash, or modifying a surfboard. On the contrary, these practices were commonplace and widely observed in the community of surfing, thus rationalizing Saville’s actions. Athletes are generally not held liable for injuries resulting from their unintentional actions, as this helps to maintain the continuation of sports. As a result, the charge of recklessness was not substantiated, and the appellate court affirmed the trial court’s judgment.


Olsen v. Saville, 2d Civ. No. B324465 (Cal. App. 2nd., 2024). Retrieved from

Guoxin Sun is a doctoral student of Sport Management at Troy University specializing in research related to data analytics.

Michael S. Carroll is a Full Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He also serves as Online Program Coordinator for Troy University and works closely with students in the TROY doctoral program.

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