Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. 06CECG02145. Adolfo M. Corona, Judge.
Jeanine G. Strong; Law Offices of Donald N. Hubbard and Donald N. Hubbard for Plaintiffs and Appellants.
Soltman, Levitt & Flaherty, John S. Levitt and Philip J. Bonoli for Defendants and Respondents.
OPINION
Kane, J.
Plaintiffs and appellants Maria Castillo and her daughter Lizette, who was injured while using a rope swing, appeal from summary judgment entered in favor of defendants and respondents Raul and Rosa Monroy. Appellants contend the trial court erred in granting respondents’ summary judgment motion because a triable issue of fact existed. We will affirm.
PROCEDURAL HISTORY
On June 30, 2006, appellants filed a negligence complaint against respondents. On October 4, 2007, respondents brought a motion for summary judgment, arguing that Lizette primarily assumed the risk of injury, and therefore recovery against respondents was barred as a matter of law. Appellants filed papers in opposition to the motion and argued that primary assumption of the risk did not apply to the case because respondents controlled the property on which the accident occurred and thus, under a premises liability theory, they had a duty of care to appellants. On October 18, 2007, the trial court granted summary judgment in favor of respondents.
FACTS
Respondents owned a recreational vehicle (RV) park in Sanger on the Kings River. On July 4, 2004, appellants went camping at respondents’ RV park. A month earlier, respondents had given appellants an open invitation to visit. When appellants arrived, they were taken on a tour of the property. Raul led appellants across a bridge onto the property adjacent to the RV park where a tree with a rope swing protruded out over the river. When appellants asked, Raul informed them that he did not own the property on which the rope swing was located. He said he had not put the rope swing in the tree and did not know who had. Raul told appellants it was okay to use the rope swing because it was a nice way to get refreshed.
That same day, Lizette’s father, Jose, and respondents’ son Edgar, both used the rope swing. Lizette watched Jose and other people use the rope swing, but she did not.
The next day, before appellants left the RV park, Lizette said she wanted to go back to the river and use the rope swing. Rosa went down to the river with appellants, but came back to the RV park before the accident occurred. Rosa had told Maria that kids used the rope swing all the time and that it was safe. Lizette went on the rope swing and swung out over the river, but did not let go. She swung back toward the bank and hit roots growing out from the side of the bank. Lizette said her leg was stuck and Jose, who had been standing in the river, came over and pulled her leg out away from the roots. Edgar brought a golf cart and drove Lizette back to the RV Park. From there, appellants went to Kaiser Hospital in Fresno. Lizette was treated and released. The next day, however, Lizette developed a fever. She was taken to the hospital where she was seen by several doctors and then transferred to different hospitals. Eventually, part of Lizette’s leg had to be amputated.
At some point after the accident, Raul informed Jose that he had taken the rope swing down off the tree and cut the roots from the bank of the river.
DISCUSSION
I. Summary Judgment
The rules governing a motion for summary judgment are well established. (See Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar); Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602.) “The purpose of the summary procedure is to ... ascertain the existence or absence of triable issues.” (Chern v. Bank of America (1976) 15 Cal.3d 866, 873.) A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
An appellate court independently determines whether a triable issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) When reviewing a motion for summary judgment, we apply a three-step analysis. “‘“First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond…. [¶] Secondly, we determine whether the moving party’s showing has [satisfied his or her burden of proof] and justif[ies] a judgment in movant’s favor.… [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.”’ [Citations.]” (Brantley v. Pisaro, supra, 42 Cal.App.4th at p. 1602.)
A. The Pleadings
The first step for a court analyzing a motion for summary judgment is to “identify the issues framed by the pleadings,” because the motion must show “there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.)
The complaint in this case demonstrates that appellants did plead a legal issue: whether respondents had a duty to keep safe the premises surrounding the rope swing. This requires the application of law to fact and therefore requires us to examine the facts presented by the moving party.
B. The Moving Party’s Burden
We next determine whether the moving party has satisfied its initial burden of producing admissible evidence “to make a prima facie showing of the nonexistence of any triable issue of material fact .…” (Aguilar, supra, 25 Cal.4th at p. 850.) A defendant moving for summary judgment may present evidence conclusively negating the plaintiff’s claim, or evidence showing the plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 853.) When the defendant moves for summary judgment on the ground that there is an affirmative defense to the action, the defendant meets the initial burden by establishing all the elements of the affirmative defense. (See Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484-1485; Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807.)
1. Respondents’ Facts and Evidence
The evidence from the record demonstrates the following undisputed facts in the case presented by respondents.
(1) Lizette was injured while using a rope swing on property not owned by respondents.
(2) Lizette was accompanied by her mother and father, who watched her use the rope swing.
(3) Neither respondent was present when the accident took place.
(4) Respondents did not install the rope swing in the tree.
(5) Respondents never rented the property on which the rope swing was located.
(6) Respondents invited appellants to visit the RV Park.
(7) Lizette injured herself when she swung back toward the river bank and hit a protruding tree root.
As these facts are undisputed by both parties, we examine whether, standing alone, they legally merit a finding in favor of respondents as the moving party.
2. Assumption of Risk
As a general principle, a duty of ordinary care is owed to others not to create an unreasonable risk of harm. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112.) The establishment of this duty is the result of a policy decision to afford legal protection. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 (Parsons).) “[T]he question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” (Knight v. Jewett (1992) 3 Cal.4th 296, 313 (Knight).)
When a person is injured while participating in sports, the question of whether the person assumed the risk is complicated by the policy considerations concerning duty. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) “[T]here are two types of assumption of risk: primary and secondary. [Citation.] Under the primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence. [Citation.] In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate. [Citation.]” (Shin v. Ahn (2007) 42 Cal.4th 482, 489; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 [application of the primary assumption of risk doctrine is a complete bar to recovery because a defendant owes no duty to protect plaintiff from the particular danger inherent in the activity].) “Thus, ‘a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. [Citation.]’ [Citation.]” (Shin v. Ahn, supra, at p. 489.)
An activity falls under the doctrine of primary assumption of risk if “‘“the activity 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.”’” (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115; Bjork v. Mason (2000) 77 Cal.App.4th 544, 550.)
From this case law, we conclude that rope swinging from a tree over a river is an activity governed by the primary assumption of risk doctrine. Participants must exert themselves against gravity by holding onto a swinging rope. The purpose of the activity is the thrill of swinging out over a body of water and falling into it. There is an inherent risk in the activity of hitting something hidden beneath the water or swinging back and hitting an object on dry land.
Here, the undisputed facts show that Lizette engaged in the activity of rope swinging from a tree over a river and that she injured herself in the manner that makes the activity inherently dangerous. The undisputed facts thus establish that Lizette assumed the risk -- an affirmative defense to appellants’ claim. Accordingly, respondents have met their burden, and standing alone, their uncontroverted evidence warrants a finding in favor of the summary judgment motion.
C. A Triable Issue of Fact
If the moving defendant meets the initial burden of establishing all the elements of the affirmative defense, the court proceeds to the third step in its analysis. (Brantley v. Pisaro, supra, 42 Cal.App.4th at p. 1602.) Under this step, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that defense. (Code Civ. Proc., § 437c, subds. (o)(2) & (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Mirzada v. Department of Transportation, supra, 111 Cal.App.4th at pp. 806-807 [once defendant establishes the existence of an affirmative defense, burden on summary judgment shifts to plaintiff to produce evidence establishing a triable issue of material fact refuting defense]; Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 565 [once defendant satisfies initial burden, plaintiff must show by reference to specific facts the existence of a triable issue as to that affirmative defense].) A triable issue of fact exists when the evidence reasonably would permit the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 850.)
In this case, appellants offer evidence of respondents’ control over the property on which the rope swing was located and argue that such evidence is enough to create a triable issue of fact as to whether respondents had a duty. Appellants cite Alcaraz v. Vece (1997) 14 Cal.4th 1149, in which the California Supreme Court ruled that control, rather than ownership, of property determined whether a defendant would be liable in a premises liability action. (Id. at p. 1162.) Appellants assert that respondents did have a duty to keep the rope swing safe because they had control of the premises and therefore this case is actually one of secondary assumption of risk rather than primary. Appellants contend in effect that because respondents were in control of the premises upon which the rope swing was located, the respondents were analogous to commercial sporting operators because they controlled and operated the use of the rope swing.
While the issue of control is one in dispute, even if appellants could establish that respondents controlled the property containing the rope swing, they would be unable to establish that respondents owed a duty to eliminate the risks inherent in rope swinging. As we have explained, the scope of a defendant’s duty depends on the nature of the sport or activity and the defendant’s relationship to or role in the sport or activity. (Knight, supra, 3 Cal.4th at pp. 313, 317.) “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, supra, at pp. 315-316; Calhoon v. Lewis, supra, 81 Cal.App.4th at p.116.) In the context of an operator of a recreational activity, the courts have used a ski resort as a paradigm for the duty borne by defendants operating recreational activities. “[A]lthough a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm.” (Knight, supra, at p. 316; see also Parsons, supra, 15 Cal.4th at p. 465.)
Thus, even if respondents were in control of the premises, they would have had only a duty not to increase the risk of rope swinging beyond its inherent danger. In other words, respondents might have had a duty to maintain the rope in a safe working condition, but they would not have had a duty to remove naturally occurring hazards, such as tree roots, from around the rope swing. Appellants therefore have failed to raise a triable issue of fact regarding respondents’ affirmative defense.
D. Conclusion
In summary, the undisputed facts establish that Lizette, by participating in rope swinging over the river, primarily assumed the risk of injury from hitting objects in the water or on the river bank. As a matter of law, respondents did not owe a duty to protect against the hazard of the tree root because hitting an object on the bank of the river was a danger inherent in the activity. Respondents have established an affirmative defense and appellants have not raised a triable issue of fact in opposition. Accordingly, summary judgment for respondents is proper in this case.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.