Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC854005, Richard E. L. Strauss, Judge.
BENKE, J.
Plaintiff and respondent Gregory Gilday was injured while competing in a drag boat race organized and conducted by defendants and appellants Aqua Speed, Inc., and its principle, Charlie Fegan (collectively Fegan). Gilday sued Fegan, stating causes of action for negligence. Based on special verdicts returned by a jury, judgment was entered in favor of Gilday. Fegan appeals, arguing the trial court erred in failing to instruct concerning the concept of conscious disregard and concerning the secondary assumption of the risk and erred in excluding evidence concerning a liability waiver and release forms executed by Gilday before the race.
BACKGROUND AND PROCEDURE
A. Complaint and Answer
By a first amended complaint, Gilday alleged he drove a powerboat in a race organized and conducted by Fegan. The complaint asserted Fegan was negligent in allowing the race to start even though he knew, given the condition of the course, that it was unsafe to do so. The complaint alleged that in starting the race, Fegan acted with a conscious disregard for Gilday's safety. Gilday lost control of his boat because of the unsafe condition, and he was injured and his boat destroyed.
Fegan answered the complaint, generally denying its allegations and asserting, among other defenses, that recovery was barred by the doctrine of primary assumption of the risk and by Gilday's execution of a "release and waiver of liability."
B. Fegan's Motion for Summary Judgment
Fegan moved for summary judgment, alleging (1) that by written waiver and release of liability, Gilday had released him from liability for injuries resulting from a race and (2) that pursuant to the doctrine of primary assumption of the risk, Fegan owed Gilday no legal duty to prevent his injury during the race.
In his opposition, Gilday argued the matter was covered by admiralty law. He contended the doctrine of assumption of the risk does not exist in admiralty law, instead such issues are treated under the doctrine of contributory negligence. Gilday argued that in any event the issue of assumption of the risk was one for the jury. Gilday also argued Fegan was not entitled to the defense of primary assumption of the risk because his conscious disregard of dangerous conditions on the water when he started the race increased Gilday's risk of harm.
Fegan replied that state law and not admiralty law applied to the case. He argued that even under admiralty law, Gilday's written release would bar recovery from Fegan. Fegan also argued that as to the doctrine of primary assumption of the risk, the facts clearly indicated he had not increased Gilday's risks by starting the race because the water conditions were safe.
The trial court denied the motion. As to whether the matter was covered by admiralty law, the court stated it had insufficient facts to rule on the claim. As to the waiver of liability and primary assumption of the risk issues, the court stated there were triable issues of fact. Specifically as to the issue of primary assumption the risk, the court stated there was a factual issue concerning whether Fegan increased Gilday's risk by knowingly starting the race aware of dangerous conditions on the water.
C. Pretrial Motions
Both parties apparently filed in limine motions and trial briefs. The trial briefs are not included in the record and the only written motions in the record are two by Fegan. In those motions, Fegan asked the trial court to try without a jury the issue of primary assumption of the risk and the defense of written release and waiver. He argued the issues were ones of law for the trial court and that judicial economy would be promoted by resolving them first.
At a pretrial hearing, the parties agreed that many of their motions would be resolved or focused once the court decided if admiralty law applied to the case. The parties differed on the effect such a finding would have. During argument, the parties and the trial court struggled both with whether admiralty law applied and what effect its application would have to the issue of wavier and release and primary assumption of the risk. Gilday asserted that if admiralty law applied, neither the doctrines of waiver and release or primary assumption of the risk could be asserted. He argued Fegan could still assert comparative negligence. Fegan agreed primary assumption of the risk would not apply but argued the doctrine of waiver and release could be advanced.
In attempting to frame the issue, Gilday noted that if his boat had simply crashed, he would not have a case against Fegan. Gilday acknowledged boat racing was a dangerous activity, and he accepted the general risks involved. Gilday stated he could only prevail if he proved there was a dangerous condition on the water and that in "conscious disregard" of that danger, Fegan started the race that resulted in Gilday's crash.
After the trial court concluded that admiralty law applied, it addressed the application of the doctrines of release and waiver and primary assumption of the risk. The court appeared to agree Gilday could only prevail if he proved Fegan started the race in conscious disregard of the dangerous condition of the water. The court also concluded the doctrine of waiver and release were not precluded in an action decided under admiralty law.
The parties and the court then considered the issue of whether the defense of waiver and release was a question of law for the court or fact for the jury. After discussing the issue, it was agreed Gilday's written wavier and release was not a defense if Fegan started the race after the course was "red lighted" by rescue personnel and when Fegan was aware the course was in an unsafe condition. The court and parties agreed that preliminary factual determination would have to be made by a jury. The court and parties agreed the jury would be asked to return special verdicts concerning the conditions under which the race was conducted and Fegan's knowledge of those conditions. Once the special verdicts were returned, the court would address the legal impact of the release and waiver.
D. Evidence at Trial
1. Plaintiff's Case
Fegan is the owner and operator of the International Hot Boat Association (IHBA), which conducts drag races between high-powered boats. On the weekend of September 19 through 21, 2003, the IHBA was conducting races on Mission Bay as part of a larger event that included power boat races of several types.
On September 21, 2003, near 5:00 in the afternoon, Gilday was in his boat on the starting line waiting to compete in an IHBA sponsored race. Visibility out of racing boats is limited, and the determination of the safety of the course is the responsibility of IHBA officials stationed in rescue boats.
On September 21 different parts of Mission Bay were being used for different types of boat races. Because of the nature of the boats used in the IHBA, the presence on its course of wakes from other boat races is very dangerous, and IHBA races are not conducted until the wakes have subsided.
Conducting races after 5:00 p.m. on Mission Bay is very difficult, and it was very close to that hour when Gilday's race was to start. Fegan was under pressure to complete the races.
As Gilday's race was about to start, rescue personnel "red lighted" the run because of wakes on the course. An argument ensued by radio between Fegan and the rescue personnel about the need to delay the race. Fegan countermanded the "red light" order, and the race began. As Gilday and the boat he was racing encountered the wakes, both began to have trouble. Gilday's competitor was able to maintain control, Gilday was not. Gilday's boat crashed. He was severely injured, and his boat was destroyed.
2. Defendant's Case
Fegan disputed there were wakes on the course when Gilday began his run and denied Fegan countermanded rescue's "red light" order. Fegan offered evidence the crash was solely the result of Gilday's negligence.
E. Special Verdicts and Judgment
The jury returned special verdicts. It found Fegan was negligent, his negligence was a substantial factor in causing harm to Gilday, there were wakes sufficiently close to the course to constitute an immediate hazard to the racers at the time of the race, Fegan was aware of the wakes, the course was "red-lighted" due to the presence or proximity of wakes to the course, Fegan stated the race despite the presence of wakes in "conscious disregard" for Gilday's safety, and Gilday was not negligent.
The jury awarded Gilday $1,907,717 in economic and non-economic damages. Judgment was entered on April 10, 2007.
DISCUSSION
A. Conscious Disregard
Fegan notes that an important issue in the case was whether he started Gilday's race despite the presence of wakes on the course in "conscious disregard" for Gilday's safety. The jury was asked to return a special verdict resolving the question. While conceding he did not request an instruction defining the term "conscious disregard," he argues the trial court was under a sua sponte duty to provide one.
1. Background
The jury was asked to return special verdicts on a number of issues related to Fegan's negligence. The jury was asked if there were wakes close to the course such that they constituted an immediate hazard to the racers at the time of the race. The jury was asked if Fegan was aware of the wakes. The jury was asked if the course was red lighted because of the wakes. The jury was asked: "Did [Fegan] start [Gilday's] race despite the presences of wakes . . . sufficiently close to the drag boat course in conscious disregard for [Gilday's] safety?" The jury answered yes to each of the questions.
During argument, Gilday's counsel asserted Fegan was negligent in starting the race. Counsel argued Gilday started the race knowing conditions were unsafe, that he did so because time was running out time to complete the races. Counsel discussed the special verdicts. As to the issue of conscious disregard, counsel read the question and then stated: "In other words, in starting the race, knowing that [wakes] were there, is that a conscious disregard for [Gilday's] safety? . . . . It was clearly a conscious decision that was made because they were running out of time and Charlie Fegan wanted these races to be done."
During his argument, Fegan's counsel reviewed what Gilday had to prove. As to conscious disregard, Fegan's counsel stated Gilday had to prove "Mr. Fegan knew the [wakes] were there and he was in conscious disregard of his safety in ordering the race anyway. Conscious disregard means, 'I know there's [wakes] there, I know it's dangerous, I know Mr. Gilday and [his competitor] are going to run in a second, but I'm going to do it anyway because I don't care what happens.' That's conscious disregard."
2. Discussion
Fegan argues that while he did not request an instruction defining the term "conscious disregard," the trial court was required sua sponte to provide one.
In civil cases, each of the parties must propose complete, specific and comprehensive instructions in accordance with his or her theory of the litigation. If a party does not do so, the court has no duty to instruct on its own motion, and any claim of error is waived on appeal. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131; Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.) Neither a trial court or a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced or to articulate for him that which he has left unspoken. When a court has given correct instructions, a party may not claim on appeal that they were too general, lacked clarity or were incomplete unless he requested additional instructions on those matters. (Metcalf v. County of San Joaquin, supra, 42 Cal.4th at pp. 1130-1131.)
In a civil action, a sua sponte duty to instruct arises only when there is "a complete failure to instruct on material issues and controlling legal principles." (Agarwal v. Johnson, supra, 25 Cal.3d at p. 951.) If the instructions given do not fully cover the facts or the issues as counsel see them, it is counsel's duty to request instructions or specific issues or questions. (Thomas v. Buttress & McClellan, Inc. (1956) 141 Cal.App.2d 812, 820.)
The trial court in this case had no duty to sua sponte instruct with a definition of the term "conscious disregard." First, not providing such a definition was not a complete failure to instruct on a material and controlling legal principle. If Fegan thought greater clarity was required concerning that term, he was obligated to request it. Second, no additional instruction concerning the term was required to understand the concept.
When terms have no technical meaning peculiar to the law and are commonly understood by those familiar with the English language, instruction as to their meaning is not required. (People v. Hoyos (2007) 41 Cal.4th 872, 915.)
As used in the law, "conscious disregard" means the defendant was aware of the probable dangerous consequences of his conduct, and he willfully and deliberately failed to avoid those consequences. (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1181; Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 61.)
In Merriam Webster's Collegiate Dictionary, 11th edition, the word "conscious" is defined as "perceiving, apprehending, or noticing with a degree of controlled thought or observation." The same dictionary defines "disregard" as "to pay no attention to: treat as unworthy of regard or notice."
The term "conscious disregard" is used in a number of standard civil and criminal instructions, e.g., CACI Nos. 1623, 3944 and CALCRIM Nos. 511, 560. No instruction in either CACI or CALCRIM defines the term.
The term "conscious disregard" has no technical meaning peculiar to the law. As used in the context of a negligence case, it is not misleading, ambiguous or esoteric. The trial court did not err in failing sua sponte to instruct the jury with a definition of the term.
B. Assumption of the Risk
Although its specifics are not entirely clear, it also appears Fegan is arguing the trial court erred in failing sua sponte to fully instruct concerning the concept of secondary assumption of the risk. It is unclear exactly what instructions Fegan claims should have been given.
1. Argument and Background
Fegan argues as follows: Because admiralty law applies to this case, the concept of primary assumption of the risk was inapplicable, i.e., Gilday's participation in an inherently dangerous activity did not relieve Fegan of his duty of care as to the risks inherent in the activity. The concept of comparative fault (secondary assumption of the risk), however, is recognized in admiralty law, i.e., a plaintiff's acceptance of a risk is weighed against the defendant's breach of duty to determine proportionate responsibility for the injury. (See Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 568-569; Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 582.)
Fegan notes the jury was instructed in the terms of CACI No. 405 that if Gilday was negligent, his recovery would be reduced by the jury's determination of the percentage of Gilday's responsibility. Fegan complains, however, the jury was not instructed concerning the scope of Fegan's duty or that it could weigh Gilday's acceptance of the risks of boat racing with assessing his share of the fault.
Fegan finds the responsibility to so instruct in Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th 577. In Vine the plaintiff was injured when she fell attempting a snowboard jump at a party hosted by her employer, the operator of the ski resort. She sued, contending the ski jump was in a dangerous condition increasing the risk to snowboarders beyond that inherent in the sport. (Id. at p. 583.)
In Vine the trial court refused a set of instructions proffered by the defendant concerning the doctrines of primary and secondary assumption of the risk. The court concluded primary assumption of the risk was not a proper subject for jury instructions because it raises legal issues concerning duty that are resolved by the court. Nonetheless, the court found the concept of primary and secondary assumption of the risk intertwined and concluded the instructions requested should have been given. (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at pp. 590-592.)
The court noted that in cases where the claim is the defendant breached the duty not to increase the risk of harm in a sport, both primary and secondary assumption of the risk are in operation. If there is no increase in the inherent risk or if the court concludes that only risks inherent in the activity were encountered, then defendant owed plaintiff no duty, and there can be no recovery. If the jury finds the defendant did increase the inherent risk, it applies the concept of secondary assumption of the risk and determines comparative fault. (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at pp. 592-593.)
Having so found, it concluded the trial court erred in refusing to give the following instructions on primary and secondary assumption of the risk offered by the defendant:
" 'The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.
" 'The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury.' " (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at pp. 593-594, fn. 5.)
" 'If you find that defendant breached its duty of care to plaintiff, plaintiff's knowing encounter with a risk of injury caused by defendant's breach, if any, is to be considered by you in determining the plaintiff's comparative negligence or fault. A person who is aware of a risk of harm created by a defendant's breach of duty but fails to avert the harm is comparatively negligent for the injury.
" 'You should consider all of the surrounding circumstances established by the evidence, including, but not limited to, the plaintiff's maturity, intelligence, experience and capacity, along with all the other surrounding circumstances as shown by the evidence.' " (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 594, fn. 6.)
The court concluded the error in failing to give the above instructions was not cured by the giving of BAJI No. 3.50, an instruction on contributory negligence similar to CACI No. 405 given in this case. The court stated the instruction was inadequate because it failed to explain that in the dangerous sport context, the assumption of the risk in participating in the sport is a form of contributory negligence. (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at pp. 594-595.)
2. Discussion
Appellant did not request the instructions he now claims the trial court was required to give. Given the manner in which the defense presented its case, it is questionable whether those instructions would have been of great importance. As the trial court and parties seemed to agree, if the jury accepted Gilday's claim that Fegan started the race aware of wakes on the course, an extremely dangerous condition, in conscious disregard of Gilday's safety, and if the jury rejected Fegan's claim that the crash was completely the result of Gilday's own negligence, then issues of comparative fault and whether Gilday's decision to participate in boat racing was some form of contributory negligence were of little moment. The jury found Fegan was aware of the wakes and started the race in conscious disregard of Gilday's safety. It found Gilday was not at fault. Instructions on the nuances of comparative fault and secondary assumption of the risk would have availed Fegan little.
In any event, the trial court's failure to sua sponte instruct concerning details of secondary assumption of the risk was not a complete failure to instruct on a material issue and controlling legal principle and issues concerning that failure are waived.
C. Evidence Concerning Releases
Fegan argues the trial court erred when it would not allow him to offer comprehensive release forms executed by Gilday before the race showing Gilday understood the high danger of boat racing. While apparently conceding the ultimate issue of the effect of the releases was a legal one for the trial court, appellant argues the fact of the releases was still relevant because they evidence the inherent risks in boat racing.
There was no issue in this case of the inherent and very real risks Gilday accepted in choosing to race powerful and fast boats over water. That fact was made clear by both parties over and over. The introduction of releases executed by Gilday would have added little to the case but would have been confusing and time consuming; they were properly excluded.
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.