Opinion
B319115
01-16-2024
PHILIP JOHN HILDEBRAND, Plaintiff and Appellant, v. LITTLE BEACH HOUSE MALIBU, LLC, et al., Defendants and Respondents.
Schwimer Weinstein, Michael E. Schwimer, and Mitchell E. Rosenweig for Plaintiff and Appellant. Mavredakis Phillips and James F.B. Sawyer for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STLC02817, Mark H. Epstein, Judge. Reversed and remanded with direction.
Schwimer Weinstein, Michael E. Schwimer, and Mitchell E. Rosenweig for Plaintiff and Appellant.
Mavredakis Phillips and James F.B. Sawyer for Defendants and Respondents.
RUBIN, P. J.
A private beach club in Malibu organized a swim race for its members. While participating in the race, plaintiff was caught off guard by a wave and fractured his ankle. He sued the owners of the beach club for negligence based on their decision to proceed with the race despite the hazardous ocean conditions that day; their failure to employ various safety measures or obtain a permit for the event; the unsafe location of the race; and the design of the swimming route, which ran perpendicular to the shore.
Defendants moved for summary judgment based on the primary assumption of risk doctrine. In opposing the motion, plaintiff filed a declaration of a retired captain ocean lifeguard who opined that the conditions on the day of the race were hazardous, the location of the race unsafe, and the race route dangerous. The trial court granted summary judgment for defendants, concluding that being injured by a crashing wave is a risk inherent in ocean swimming and that defendants' conduct did not increase that risk as a matter of law. Because we conclude the retired captain's declaration raised a triable issue as to whether defendants increased the risks to plaintiff beyond those inherent in ocean swimming, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
1. The Incident
Defendants, the owners of a private beach club in Malibu, organized and hosted a swim race for its members on November 11, 2017. The event was advertised in flyers posted at the club and emails sent to members. Defendants obtained no special permit to host the swim race, hired no lifeguards or medical personnel, and employed no procedures to disqualify those who might not be competent ocean swimmers. The person conducting the race informed the participants on the day of the race that ocean conditions were rough and gave them basic instructions to dive under waves.
Plaintiff Philip John Hildebrand, a Malibu resident and a member of the club, participated in the race. Upon entering the ocean, plaintiff noticed a fellow participant in distress. As plaintiff swam to help the other swimmer, a wave blindsided plaintiff, hurling him to the sand and fracturing his ankle. Plaintiff made his way back to shore and evaluated his injury; he then returned to the ocean and completed the race.
2. Plaintiff's Complaint and Defendants' Motion for Summary Judgment
On March 21, 2019, plaintiff filed a complaint against defendants asserting claims for negligence, premises liability, negligence per se, and unlawful business practices.
Defendants moved for summary judgment. In opposing the motion, plaintiff submitted the declaration of Robert Torres, a "retired Captain Ocean Lifeguard," who had been responsible for evaluating applications for ocean swim events held in Los Angeles County, which included "determining if . . . ocean activity was safe as proposed ...." Torres opined that "the proposed location [of the swim race] was unsafe and unsuitable for [the event], and the vertical race path into navigable waters was inherently dangerous, and inappropriate for an ocean swim race." He also described the "ocean conditions on the day of the race" as "ultrahazardous."
Specifically, Torres's declaration stated: "It is my opinion, to a reasonable degree of certainty, that the Defendants' conduct in planning, organizing, and holding the subject swim race was grossly negligent, fell significantly below the standard of care, and was in direct violation of Los Angeles County and City of Malibu guidelines and regulations. Specifically, it is my opinion that the following conduct fell below the standard of care: a. Holding the ocean swim race in a location that was not safe or suitable for the event; b. Holding the ocean swim race in unsafe and hazardous ocean conditions; c. Holding a vertical ocean swim race which extended into navigable waters; d. Failing to post or provide any warnings of the dangerous ocean conditions; e. Failing to staff the swim race with appropriate safety personnel or lifeguards; f. Failing to post or provide any warnings that no lifeguards were on duty for the ocean swim race; g. Failing to perform any evaluation of the participants in the swim race to determine whether they are qualified to participate; h. Failing to adequately instruct the participants in the race of proper safety precautions, including a description of the ocean conditions and the safest method for entering and exiting the water; i. Failing to adequately evaluate the conditions of the ocean on the day of the race before allowing the race to proceed; j. Failing to staff the swim race with appropriate medical personnel." Torres concluded his declaration with: "It is further my opinion that the aforementioned conduct of Defendants significantly increased the risk of harm to the participants in this swim race, including the Plaintiff."
3. The Trial Court's Order Granting Summary Judgment
After multiple rounds of briefing, hearings, and continuances, the trial court overruled all evidentiary objections and granted summary judgment for defendants based on the primary assumption of risk doctrine. The court concluded that defendants owed no duty to protect plaintiff from the ocean's waves because "defendants had no control over the ocean and its conditions, and there is no indication anything they did increased the risk." It also reasoned that the "safety measures [plaintiff advanced] (such as swimming parallel to the shore rather than perpendicular to it) . . . would change the nature of the race."
Plaintiff filed a motion for reconsideration, which the trial court denied. Following the entry of judgment, plaintiff filed a timely appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting summary judgment.
1. Overview of Motions for Summary Judgment
A defendant is entitled to summary judgment if it can "show that there is no triable issue as to any material fact." (Code Civ. Proc., § 437, subd. (c).) The defendant bears the initial burden of showing a cause of action has no merit by showing the plaintiff cannot establish "[o]ne or more elements of [his] cause of action" or that "there is a complete defense to the cause of action." (Id., subds. (o) &(p)(2).) If the defendant makes this initial showing, the "burden shifts" to the plaintiff "to show that a triable issue of one or more material facts exists as to that cause of action or . . . defense thereto." (Id., subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
"The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury." (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; accord Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 925.) Thus, if defendants owed plaintiff no duty of care, they are entitled to summary judgment.
Negligence per se is not a separate cause of action, but refers to the borrowing of statutory standards in negligence actions. (Elsner v. Uveges (2004) 34 Cal.4th 915, 927, fn. 8; McKenna v. Beesley (2021) 67 Cal.App.5th 552, 574.) The unlawful business practices claim is premised on the same allegations as the negligence claims. Plaintiff did not separately address this claim on appeal; nor do we.
We independently review whether summary judgment has been properly granted, whether a duty of care exists, and whether primary assumption of risk bars a plaintiff's claim. (Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 273; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57; Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 178 (Saffro).) In applying these principles we undertake "the same procedure employed by the trial court." (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)
2. Primary Assumption of Risk Doctrine
Generally, people have a duty to use due care to avoid injury to others and may be held liable if their careless conduct injures another person. (Civ. Code, § 1714, subd. (a); Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536; Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight).) The primary assumption of risk doctrine creates an exception to this rule: No one owes a duty to protect anyone else from risks inherent in a given sport or activity. (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 600.)
"An activity falls within the primary assumption of risk doctrine if it '" '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.'" '" (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 739 (Huff).) The doctrine is driven by the policy against inhibiting vigorous participation in, or causing abandonment of, sports and recreational activities that carry inherent risks but that are valuable to society. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156; Mayes v. La Sierra University (2022) 73 Cal.App.5th 686, 697; see also Wellsfry v. Ocean Colony Partners, LLC. (2023) 90 Cal.App.5th 1075, 1085 ["' "conditions . . . that might otherwise be viewed as dangerous are often an integral part of the sport itself"' "]; Nalwa, at p. 1157 ["recreational activity, however valuable to one's health and spirit, is voluntary in a manner employment and daily transportation are not"].)
Although primary assumption of risk eliminates any duty to minimize risks already inherent in a recreational activity, it does not excuse participants, instructors, or others involved in organizing the activity from using due care to avoid increasing the risks to participants over and above those inherent in the activity. (Nalwa, supra, 55 Cal.4th at p. 1162; Knight, supra, 3 Cal.4th at pp. 315-316; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1006 (Kahn); Wellsfry, supra, 90 Cal.App.5th at p. 1085; American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 36.)
Courts analyzing the duties of sports-venue owners have defined "the risks inherent in the sport . . . by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport." (Knight, supra, 3 Cal.4th at p. 317; see also Kahn, supra, 31 Cal.4th at p. 1004; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 133-134 [golf course owner had duty to design golf course to minimize risk golf ball would hit player]; Saffro, supra, 98 Cal.App.4th at p. 179 [marathon organizer owed duty to minimize risk of dehydration by providing adequate water along course, particularly where it had told participants it would provide hydration at specific locations throughout]; Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1298, 1302 [hot air balloon operators had no duty to protect customers from crash landings caused by pilot's failure to safely manage balloon's descent but did owe duty to instruct passengers on how to position themselves for landing]; Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1104 [owner of motocross track owed duty to provide system for signaling when riders had fallen to minimize risk of collision]; cf. Wellsfry, supra, 90 Cal.App.5th at p. 1078 [golf course owner owed no duty to remove or warn of hidden tree root because stepping on tree root is inherent risk of outdoor golf]; Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 14 [ski area operator owed no duty to protect against risk of colliding with ski lift tower-a risk inherent in skiing].)
Although we have found no case that considers primary assumption of risk in connection with an organized, recreational ocean-swimming race, the parties seem to agree that the sport falls squarely within those activities to which the assumption of risk doctrine may apply, i.e., those done for enjoyment or thrill, requiring physical exertion and skill, and involving a challenge presenting a potential risk of injury. (Huff, supra, 138 Cal.App.4th at p. 739.)
3. The Trial Court Erred in Granting Summary Judgment Under the Primary Assumption of Risk Doctrine
The parties do not dispute that swimming in the ocean carries the inherent risk of being caught off guard and injured by a wave. (See, e.g., Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436 ["[b]eaches can have high points, low points, riptides, rip currents, swirls, splashing waves, drowning water, sand crabs, driftwood, broken glass . . . all kind[s] of dangers"].) Plaintiff contends the trial court erred in granting summary judgment because plaintiff had raised a triable issue of material fact as to whether defendants breached their limited duty of care-that is, their duty not to increase the risk of being injured by a wave beyond that inherent in ocean swimming. We agree.
Because defendants moved for summary judgment on the issues of duty and breach, it was their burden to show not only that being injured by a wave was an inherent risk of ocean swimming, but also that no reasonable fact finder could conclude defendants' conduct increased that particular risk to plaintiff. (Luna v. Vela (2008) 169 Cal.App.4th 102, 112; Huff, supra, 138 Cal.App.4th at p. 740 ["when the plaintiff claims the defendant's conduct increased the inherent risks of a sport, summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the theory or establishes lack of causation"].) Defendants failed to make that showing. They proffered no evidence to show that vertical race routes do not increase the risks inherent in ocean swimming or that implementing a route parallel to the shore would have" 'alter[ed] fundamentally the nature of the sport by deterring participants from vigorously engaging in [the] activity.'" (Shin v. Ahn (2007) 42 Cal.4th 482, 489.) Nor did they submit evidence regarding the safety of the race's location or the ocean conditions on the day of the race.
Plaintiff, on the other hand, submitted the declaration of Mr. Torres, a retired captain ocean lifeguard, who, working for the County of Los Angeles, had been responsible for evaluating applications for ocean swim events and "determining if . . . ocean activity was safe as proposed ...." Based on his review of "[h]istorical oceanographic data," Torres opined in his declaration that "the proposed location was unsafe and unsuitable for an ocean race"; the ocean conditions at the time of the race were "hazardous"; "and the vertical race path into navigable waters inherently dangerous[] and inappropriate for an ocean swim race." Based on these (and other) circumstances, Torres concluded that defendants "significantly increased the risk of harm to the participants." On this record, the question of whether defendants breached their duty not to increase the risks inherent in ocean swimming cannot be resolved by way of summary judgment.
The trial court overruled defendants' objections to the Torres declaration-a ruling defendants do not challenge on appeal. (See Wellsfry, supra, 90 Cal.App.5th at p. 1082, fn. 3 [on appeal from summary judgment," 'we review the record de novo, considering all the evidence . . . except that to which objections have been made and sustained' "].)
Much of Torres's declaration is framed in terms of Malibu's permitting requirements. We express no opinion on what role, if any, the municipal code governing such permits plays in the duty and breach analysis.
Defendants argue "the only way [they] could have prevented participants from being upended by a wave was to not have held the event at all-which . . . would constitute a substantial alteration in the nature of the sport." This argument is specious. First, defendants cite no evidence in the record to support this assertion. Second, the question before us is not whether defendants could have prevented plaintiff from being upended by a wave, but whether their acts or omissions increased the risk of that happening.
DISPOSITION
The judgment is reversed, and the cause is remanded for the trial court to vacate its order granting summary judgment, to enter a new order denying summary judgment, and for further proceedings. Plaintiff is to recover his costs on appeal.
WE CONCUR: BAKER, J., MOOR, J.