Opinion
E067759
10-09-2018
YU CHAIO TAN, Plaintiff and Appellant, v. HANGAR 18 INDOOR CLIMBING GYM LLC et al., Defendants and Respondents.
Rodriguez & King, Rob A. Rodriguez, Stephen A. King and Richard A. Apodaca for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod, Karen Liao and Trisha E. Newman for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1505414) OPINION APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed. Rodriguez & King, Rob A. Rodriguez, Stephen A. King and Richard A. Apodaca for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod, Karen Liao and Trisha E. Newman for Defendants and Respondents.
Yu Chaio Tan (Tan) sued Hangar 18 Indoor Climbing Gym, LLC and Hangar 18 Upland Inc. (collectively, Hangar 18) for negligence and premises liability. Hangar 18 moved for summary judgment. The trial court granted the motion. Tan contends the trial court erred by granting summary judgment. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. FIRST AMENDED COMPLAINT
In this subsection we present the allegations from Tan's First Amended Complaint (FAC). On June 8, 2013, Tan arrived at the Hangar 18 gym in Upland. Tan was given documents to sign. The documents were not explained to Tan. Tan did not fully understand the documents. After signing the documents, Tan was informed that she could not use the gym facility without a partner. On June 8, Tan was not given any instructions or information on how to rock climb or "boulder."
On June 9, Tan returned to the Hangar 18 gym in Upland. Tan brought a friend with her. Neither Tan nor her friend had been rock climbing or bouldering. Tan was not given any instructions on rock climbing or bouldering. Tan used the bouldering part of the facility. Tan climbed up 12 to 15 feet. Tan fell, and landed on her back. Tan fell onto a gym mat, which was inadequate and failed to meet industry standards for bouldering. Tan lost consciousness and experienced pain in her legs, back, and neck. Tan suffered "a burst fracture to her spine."
Tan's first cause of action was for negligence. Tan alleged Hangar 18 had a duty to protect customers from dangerous conditions at its facilities, and that Hangar 18 breached that duty with its "extreme departure from what a reasonable person would do in the same situation." In particular, Hangar 18 failed to (1) provide training or instruction on rock climbing; (2) provide warnings; (3) provide adequate mats for falls; and (4) provide instructions on how to safely fall. Tan asserted Hangar 18 increased the risk of harm to Tan.
Tan's second cause of action was for premises liability. Tan asserted Hangar 18 carelessly and recklessly provided inadequate mats that did not meet industry standards. Tan asserted the inadequate mats created an unreasonable risk of harm. Tan requested general damages, special damages, costs, and interest.
B. MOTION FOR SUMMARY JUDGMENT
Hangar 18 moved for summary judgment. Hangar 18 explained that Tan was on her fifth climb of the day, and near the top of the climbing wall, when she fell. Tan reached for the last grip on the wall, but missed it, and fell.
Hangar 18 asserted summary judgment should be granted because (1) Tan executed a release of liability, thereby releasing Hangar 18 of any liability for negligence; (2) Tan executed an assumption of the risk agreement; (3) Tan's claims were barred by the law of primary assumption of the risk; (4) Tan cannot establish a dangerous condition for her premises liability cause of action; (5) Tan cannot establish a causal connection between her fall and a dangerous condition; and (6) Tan cannot establish that Hangar 18 had knowledge of the alleged dangerous condition.
Dave Hamilton was the chief operations officer at Hangar 18 Upland, Inc. (Hangar Upland). In June 2013, Hangar Upland had vinyl pads at the base of the bouldering wall. The pads consisted of foam on top of carpet, which amounted to a thickness of 14 inches. The pads were installed in December 2011. From that time to the time of Tan's injury, Hangar 18 did not receive any complaints about the pads.
On June 8, Tan signed a liability release form that provided, in relevant part, "I HEREBY ACKNOWLEDGE AND AGREE that the sport of indoor rock climbing and the use of the facility of HANGAR 18 INDOOR CLIMBING GYM, LLC . . . its climbing wall and other training facilities has inherent risks. I have full knowledge of the nature and extent of all the risks associated with indoor rock climbing and the facilities, and have had any questions about the same explained to me, including but not limited to:
"1. All manner of injury resulting from falling off the climbing wall and hitting rock faces and projections whether permanently or temporarily in place, or the floor.
[¶] . . . [¶]
"I further acknowledge that the above list is not inclusive of all possible risk associated with the use of Hangar 18 and that the above list in no way limits the extent or each waiver and covenant not to sue, I choose to use Hangar 18's climbing facilities and equipment and agree as follows:
"To waive and release any and all claims that I have or may have in the future against Hangar 18, including their owners, operators, employees, agents, and representatives, as well as the designers, manufacturers or installer of the climbing wall or equipment.
"In consideration of my use of Hangar 18, I, the undersigned user, agree to use the Hangar 18 in accordance with its established safety policies and procedures and agree to INDEMNIFY AND HOLD HARMLESS Hangar 18, its officers, agents, owners and employees from any and all cause of action, claims, demands, losses or costs of any nature whatsoever arising out of or in anyway [sic] relating to my use of Hangar 18, whether asserted by the Hangar 18 or any third parties who may be injured on account of or in any way relating to the Hangar 18.
[¶] . . . [¶]
"By signing this agreement, I waive my right to bring a court action to recover compensation or obtain any other remedy for any injury to myself or my property or for my death, however caused, arising out of my use of the facilities of Hangar 18, now or any time in the future, whether caused by the gym's negligence or that of its officers, agents or employees."
In its motion for summary judgment, Hangar 18 asserted the foregoing release expressly freed Hangar 18 from any liability for negligence. Therefore, Hangar 18 argued that summary judgment should be granted. Further, Hangar 18 asserted the release also included an express assumption of the risk, which relieved Hangar 18 of any duty owed to Tan.
In regard to the doctrine of primary assumption of the risk, Hangar 18 asserted rock climbing was a risky sport, and missing a grip and falling was an inherent risk within the sport. Hangar 18 asserted it did not increase the risk of harm and therefore summary judgment should be granted. As to premises liability, Hangar 18 contended that it was undisputed that there were 14 inches of padding at the base of the bouldering wall. Hangar 18 argued that 14 inches of padding did not constitute a dangerous condition. In the alternative, Hangar 18 asserted it did not have knowledge that 14 inches of padding was inadequate because it had never received a complaint about the padding prior to Tan's injury.
C. OPPOSITION
Tan opposed Hangar 18's motion for summary judgment. Tan found a membership offer on Groupon for Hangar 18 and purchased it. Tan went to Hangar Upland on June 8. Tan completed the paperwork she was given without reading it. After finishing the paperwork, Tan requested a person to train her in rock climbing. A Hangar 18 employee told Tan the trainers were busy, that she would need an appointment to meet with a trainer, and that Tan would need a partner. Tan said, " 'Okay. I'll come back tomorrow,' " and left.
On June 9, Tan and Tony Chen went to Hangar Upland. Chen did not have experience rock climbing. Chen completed paperwork to use the facility. When the paperwork was completed, Tan asked if a trainer was available. A Hangar 18 employee said all the trainers were busy, and that Tan and Chen would have to wait "for a while." The employee told Tan and Chen they could climb the bouldering wall without training. Tan and Chen decided to climb the bouldering wall. Tan climbed three or four walls for a total of five or six climbs. Tan climbed up and down the walls without falling. On the last climb, Tan reached for the last grip, at the top of the wall, but missed it and fell. Tan fell on her back.
A Hangar 18 employee asked Tan if she needed an ambulance or ice. Tan said she did not need an ambulance, and Chen said Tan needed ice. The employee brought Tan an ice pack. Chen took Tan home. Tan was in excruciating pain, and was transported by ambulance to a hospital. Tan suffered an L1 burst fracture in her lower back. On June 10, 2013, Tan underwent back surgery. Screws and rods were placed in Tan's back to secure her spine. Tan continued to suffer pain, which she used opiates to manage.
Tan asserted rock climbing and bouldering were inherently dangerous. Tan contended the industry standard was to provide an orientation to novice climbers. Hangar 18's policy was to provide an orientation to all new customers. Tan asserted that Hangar 18's failure to provide her with an orientation increased the risk inherent in bouldering.
In regard to the padding, Tan asserted there were only eight inches of padding in the area where she fell. Mark J. Burns was a forensic engineer. Burns explained that Hangar 18 alleged there were 14 inches of cushioning where Tan fell, consisting of two inches of carpeting and 12 inches of padding. Burns declared that his measurements reflected there were eight inches of padding "on a small platform of hard material." Burns explained that industry standards require one inch of foam padding for every foot of wall height. The wall from which Tan fell ranged in height from 13 feet four inches to 15 feet. Therefore, there should be at least 15 inches of foam padding at the base of the wall. Burns opined that the eight inches of padding provided by Hangar 18 "was wholely [sic] inadequate and constituted a dangerous condition."
Tan asserted the release of liability was void because Hangar 18 failed to give Tan a copy of the release when she signed it. (Civ. Code, §§ 1812.82, 1812.91.) Alternatively, Tan asserted the release was unenforceable because it contained various ambiguities. Next, Tan argued Hangar 18's conduct or omissions constituted gross negligence. Tan asserted 22 other people suffered injuries within the six months prior to Tan's fall, thus Hangar 18 had notice that its padding system was dangerous. Tan asserted the primary assumption of the risk doctrine was inapplicable because Hangar 18 increased the risks inherent in the sport of rock climbing.
Civil Code section 1812.82 provides, "Every contract for health studio services shall be in writing and shall be subject to the provisions of this title. A copy of the written contract shall be physically given to or delivered by email to the customer at the time he or she signs the contract."
Civil Code section 1812.91 provides, "Any contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy."
D. RESPONSE
Hangar 18 filed a response to Tan's opposition. As to the release being void, Hangar 18 asserted the release was not a contract for services and therefore Hangar 18 was not required to give a copy of the release to customers. (Civ. Code, § 1812.82.) Further, Hangar 18 asserted rock climbing gyms were not health studios and therefore Civil Code section 1812.82 was not applicable to Hangar 18.
Civil Code section 1812.81 provides, "As used in this title, 'contract for health studio services' means a contract for instruction, training or assistance in physical culture, body building, exercising, reducing, figure development, or any other such physical skill, or for the use by an individual patron of the facilities of a health studio, gymnasium or other facility used for any of the above purposes, or for membership in any group, club, association or organization formed for any of the above purposes; but does not include (a) contracts for professional services rendered or furnished by a person licensed under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code, (b) contracts for instruction at schools operating pursuant to the provisions of the Education Code, or (c) contracts for instruction, training, or assistance relating to diet or control of eating habits not involving physical culture, body building, exercising, figure development, or any other such physical skill."
In regard to gross negligence, Hangar 18 asserted Tan confused gross negligence with primary assumption of the risk by arguing that increasing the risk inherent in the sport constituted gross negligence. Hangar 18 contended its alleged conduct or omissions did not rise to the level of gross negligence. Hangar 18 contended that if Tan could establish negligence, then her claim would be barred by the release of liability. Hangar 18 contended the release of liability was unambiguous.
In regard to assumption of the risk, Hangar 18 contended it did not increase the risk of Tan falling while bouldering. Hangar 18 asserted its floor padding system did not increase Tan's risk of falling. Hangar 18 contended that if the padding caused Tan's injuries to be more severe, that fact would not be relevant to a primary assumption of the risk analysis. Hangar 18 cited the following, "The Knight exception applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendant's conduct may have increased the severity of the injury suffered." (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 116.)
Knight v. Jewett (1992) 3 Cal.4th 296. --------
As to premises liability, Hangar 18 asserted the only dangerous condition alleged by Tan was inadequate floor padding. Hangar 18 asserted prior injuries suffered by other patrons were not specifically attributed to inadequate padding. As a result, there was no evidence that Hangar 18 had notice of inadequate padding creating a dangerous condition.
E. HEARING
The trial court held a hearing on Hangar 18's motion for summary judgment. The trial court said its tentative ruling was to deny the motion for summary judgment. The trial court explained there were triable issues as to (1) whether the release was void due to Hangar 18 failing to give Tan a copy of the release; and (2) whether Hangar 18 increased the risk of injury by failing to provide adequate padding. The trial court said it would tentatively grant the alternative motion for summary adjudication as to the premises liability cause of action. The trial court explained there was no evidence that Hangar 18 knew or should have known of the inadequate padding.
In regard to the premises liability cause of action, Tan asserted there was evidence of 22 people being injured by falls at Hangar 18, evidence that the padding system was inadequate, and evidence that Hangar 18 was aware of the industry standard of one inch of padding for every foot of wall height. Tan contended the evidence established a triable issue of fact as to knowledge of a dangerous condition.
Hangar 18 contended the alleged inadequate padding may have increased the severity of the injury, but it did not increase the risk of being injured, which meant Tan's claims were barred by the primary assumption of the risk doctrine. The trial court took the matter under submission.
F. RULING
The trial court granted Hangar 18's motion for summary judgment. The trial court explained, "[T]he Court finds that because the sport/activity of rock climbing bears the risk of falling, [Tan] assumed the risk of falling and injuring herself when she engaged in rock climbing/bouldering at [Hangar 18's] facility, and the alleged inadequate padding of the floor may have increased the type and severity of any injury arising from a fall, but it did not increase the risk of an injury from falling while climbing a boulder.
"Additionally, [Hangar 18's] Motion for Summary Adjudication of the 2nd cause of action for premises liability is granted because no evidence was presented that defendants knew or should have known of the inadequate cushioning of the floor to then take corrective measures in that the prior reported accidents are not shown to relate to or address any injury occurring because the flooring failed to provide adequate cushioning."
G. MOTION FOR RECONSIDERATION
Tan filed a motion for reconsideration. Tan explained that, while the motion for summary judgment was under submission, Bryan Baez was deposed. Baez installed the padding at Hangar Upland. Baez said the padding was installed over concrete, and eight inches of padding was installed. Also, further discovery revealed that seven of the 22 people injured, prior to Tan's injury, were injured by falling from the bouldering wall onto the padded floor. Further discovery revealed a new witness, Austin Turner, who was a customer of Hangar Upland. Turner had e-mailed Hamilton to inform him that he (Turner) witnessed Tan's fall and that "the crew at [H]angar 18 [U]pland may need a refresher in the safety course to ensure it stays a safe place to climb." Turner explained that the employees left Tan lying on the mat for 15 minutes after her fall before offering her any assistance. Tan asserted the new evidence reflected there was a triable issue of fact as to whether Hangar 18 increased the risk of harm and whether Hangar 18 had knowledge of the dangerous condition. Tan also argued that the failure to provide her instruction on climbing increased the risk of harm.
Hangar 18 opposed Tan's motion for reconsideration. Hangar 18 asserted (1) the trial court lacked jurisdiction to consider the motion for reconsideration because judgment had already been entered, (2) Tan failed to explain why the new evidence was not presented earlier, and (3) the facts provided by Tan were not new.
Tan replied to Hangar 18's opposition. Tan asserted the trial court could set aside the judgment in order to rule on the motion for reconsideration. Alternatively, Tan contended the trial court could treat the motion as a motion for new trial. Tan asserted the new evidence reflected the padding consisted of eight inches of foam on top of concrete, which contradicted industry standards, and established a triable issue of material fact concerning increasing the risk of harm. Tan also argued that the new evidence established a triable issue of material fact as to Hangar 18 having knowledge of the dangerous condition, because it showed Hangar 18 knowingly installed only eight inches of padding on top of concrete.
The trial court held a hearing on Tan's motion for reconsideration. The trial court said its tentative ruling was to deny the motion because judgment had already been entered. Tan explained that she submitted new evidence from Baez reflecting the padding measured eight inches, thus creating a triable issue of fact concerning the adequacy of the padding. The court said, "The matting is after the fact. The fall occurs first."
Tan responded that if the issue was increasing the risk of falling, then Hangar 18 failed in its duty to provide Tan with instruction on climbing. Tan contended the failure to provide her instructions constituted gross negligence. Hangar 18 asserted the court did not have jurisdiction to consider the motion for reconsideration, and if the court treated the motion as a motion for new trial, then Tan failed to explain (1) why the evidence was not available at time of summary judgment, and (2) why the evidence was material. Hangar 18 contended the new evidence was cumulative.
The court responded that it was not treating the motion as a motion for new trial because Hangar 18 did not have an opportunity to brief a response to a motion for new trial, and the court did not have jurisdiction to grant a motion for reconsideration because judgment had already been entered. The trial court denied Tan's motion for reconsideration.
DISCUSSION
A. CONTENTION
Tan contends the trial court erred by granting summary judgment.
B. PROCEDURE AND STANDARD OF REVIEW
" 'A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case . . . ." [Citation.]' [Citation.] '[O]nce a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action." '
" 'On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.' " (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 274.)
C. NEGLIGENCE
1. RELEASE OF LIABILITY
In regard to Tan's claim of negligence, Hangar 18 raised the defense of Tan having signed a release of liability.
"An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. [Citation.] A release may negate the duty element of a negligence action. Contract principals apply when interpreting a release, and 'normally the meaning of contract language, including a release, is a legal question.' " (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356 (Benedek).)
On June 8, Tan signed a release of liability in which she agreed "[t]o waive and release any and all claims that I have or may have in the future against Hangar 18 . . . [¶] [and] agree to INDEMNIFY AND HOLD HARMLESS Hangar 18, its officers, agents, owners and employees from any and all cause of action, claims, demands, losses or costs of any nature whatsoever arising out of or in anyway [sic] relating to my use of Hangar 18, whether asserted by Hangar 18 or any third parties who may be injured on account of or in any way relating to the Hangar 18.
[¶] . . . [¶]
"By signing this agreement, I waive my right to bring a court action to recover compensation or obtain any other remedy for any injury to myself or my property or for my death, however caused, arising out of my use of the facilities of Hangar 18, now or any time in the future, whether caused by the gym's negligence or that of its officers, agents or employees."
The language of the release is clear in that Tan waived her right to sue Hangar 18 for negligence. Specifically, Tan agreed to waive her right to bring a lawsuit to recover compensation for any injury caused by the Hangar 18's negligence, e.g. "whether caused by the gym's negligence." In the first cause of action, Tan is suing Hangar 18 for alleged negligence. Thus, the release bars the negligence cause of action.
2. COPY OF THE RELEASE
The burden of proof now shifts to Tan. Tan contends the release is void because Hangar 18 did not give Tan a copy of the release when she signed it.
"Every contract for health studio services shall be in writing and shall be subject to the provisions of this title. A copy of the written contract shall be physically given to or delivered by email to the customer at the time he or she signs the contract." (Civ. Code, § 1812.82.) A " 'contract for health studio services' means a contract for instruction, training or assistance in physical culture, body building, exercising, reducing, figure development, or any other such physical skill, or for the use by an individual patron of the facilities of a health studio, gymnasium or other facility used for any of the above purposes, or for membership in any group, club, association or organization formed for any of the above purposes." (Civ. Code, § 1812.81.) "Any contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy." (Civ. Code, § 1812.91.)
The release of liability is a one-page document in which Tan released Hangar 18 from liability for negligence, assumed the risk of rock climbing, and assumed the risk of not wearing a helmet while rock climbing. The release does not reflect an agreement concerning instruction, training, or gym membership. Therefore, the release is not a contract for health services, and Civil Code section 1812.82 is inapplicable.
3. PUBLIC POLICY
Tan contends that all contracts "attempt[ing] to exempt anyone from responsibility for their own 'violation of the law, whether willful or negligent,' are against public policy and void." "Exculpatory agreements in the recreational sports context [as they concern ordinary negligence] do not implicate the public interest and therefore are not void as against public policy." (Benedek, supra, 104 Cal.App.4th at pp. 1356-1357.) Accordingly, we find Tan's public policy argument to be unpersuasive.
D. GROSS NEGLIGENCE
1. THE RELEASE
The release of liability cannot include gross negligence. "California cases have long held that liability for ordinary negligence may be released; however, gross negligence has been distinguished—'no published California case has upheld . . . an agreement purporting to release liability for future gross negligence.' [Citation.] Our Supreme Court has specifically concluded 'that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.' " (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 (Rosencrans).)
2. LAW
"Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. [Citation.] However, to set forth a claim for 'gross negligence' the plaintiff must allege extreme conduct on the part of the defendant. [Citation.] The conduct alleged must rise to the level of 'either a " ' "want of even scant care" ' " or " ' "an extreme departure from the ordinary standard of conduct." ' " ' " (Rosencrans, supra, 192 Cal.App.4th at p. 1082.)
3. FAC
Within Tan's cause of action for negligence, she alleged Hangar 18 "acted or failed to act with any care and/or engaged in conduct that was an extreme departure from what a reasonable person would do in the same situation." Tan's first cause of action sets forth a claim for gross negligence because Tan alleged a lack of any care and an extreme departure from the ordinary standard of conduct.
4. ESTABLISHING THE ELEMENTS
a. Existence of a Duty
i. Summary Judgment Contention
Hangar 18 asserted Tan assumed the risk of falling by participating in the sport of indoor bouldering, and therefore her gross negligence claim is barred by the primary assumption of the risk doctrine.
ii. Law
"As a general rule, people have a duty to use due care to avoid injuring others. [Citation.] However, dangerous conduct or conditions are often an integral part of participating in sports [citation]; therefore, when a plaintiff is injured while participating in a dangerous sport, the duty analysis becomes intertwined with an exception to the general duty of care rule known as 'assumption of the risk.' The 'assumption of the risk' doctrine provides an exception to the general duty of care rule when a plaintiff is injured while voluntarily participating in a risky activity." (Rosencrans, supra, 192 Cal.App.4th at p. 1082.)
"Primary assumption of the risk means that the plaintiff has voluntarily participated in a sport that includes various inherent risks, and therefore, the defendant is relieved of his or her duty to use due care to avoid the plaintiff suffering an injury as a result of those inherently risky aspects of the sport. [Citation.] The question of whether a defendant should be relieved of his or her duty is a question of law and policy. [Citation.] A court must evaluate (1) the fundamental nature of the sport, and (2) the defendant's relationship to the sport, in order to determine if the defendant should be relieved of his or her general duty of care. [Citation.] As a matter of policy, a duty should not be imposed where doing so 'would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.' [Citation.] If the defendant is relieved of his or her duty of care, then the plaintiff's negligence cause of action is barred." (Rosencrans, supra, 192 Cal.App.4th at pp. 1082-1083.)
iii. Nature of the Sport
Hangar 18 and Tan agree that falling is an inherent risk in the sport of indoor bouldering. Accordingly, we conclude falling is an inherent risk in the sport of indoor bouldering. (Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040, 1047 [falling is an inherent risk of rock climbing].)
iv. Status of Defendant
In one case, our Supreme Court explained, "Duties with respect to the same risk may vary according to the role played by particular defendants involved in the sport. In the sport of baseball, for example, although the batter would not have a duty to avoid carelessly throwing the bat after getting a hit—vigorous deployment of a bat in the course of a game being an integral part of the sport—a stadium owner, because of his or her different relationship to the sport, may have a duty to take reasonable measures to protect spectators from carelessly thrown bats. For the stadium owner, reasonable steps may minimize the risk without altering the nature of the sport." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004, italics added.)
In a second case, the Supreme Court wrote, "Other cases also have analyzed in a similar fashion the duty of the owner of a ballpark or ski resort, in the process defining the risks inherent in the sport not only by virtue of the nature of the sport itself, but also 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 v. Jewett, supra, 3 Cal.4th at p. 317, italics added.)
The foregoing two cases suggest that an owner/operator of a sports facility may have an obligation to minimize the risks associated with an inherently risky sport. In reliance on those cases, in 2011, this court wrote, "An owner/operator of a sports facility has a duty to provide a reasonably safe course or track. [Citation.] This duty requires an owner or operator ' "to minimize the risks without altering the nature of the sport." ' " (Rosencrans, supra, 192 Cal.App.4th at p. 1084.)
After Rosencrans, in 2012, our Supreme Court wrote, "Plaintiff [argues] that a greater duty should apply to proprietors of recreational activities because they are 'uniquely positioned to eliminate or minimize certain risks, and are best financially capable of absorbing the relatively small cost of doing so.' As to the inherent risks of injury from recreation, we disagree. A rule imposing negligence duties on sponsors, organizers and operators of recreational activities would encompass not only commercial companies like defendant but also noncommercial organizations without extensive budgets or paid staff. Such groups might not easily afford insurance to cover injuries that are inherent risks of the activity; nor could they readily collect large fees from participants to cover that cost. The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury." (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162 (Nalwa) [italics added].)
Thus, our Supreme Court has explained that operators of sports facilities do not have a duty toward participants to minimize risks inherent in a sport. Rather, "under the primary assumption of risk doctrine, operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity." (Nalwa, supra, 55 Cal.4th at p. 1162.)
v. Analysis
In Tan's FAC, she alleged that Hangar 18 operates the climbing gym in which she fell. Tan also alleged that she was a participant in the sport of indoor bouldering at Hangar Upland at the time of her fall. Thus, Hangar 18, as an owner, owed a duty to Tan, a participant, and that duty consisted of not unreasonably increasing the risks of injury beyond those inherent in the activity. (Nalwa, supra, 55 Cal.4th at p. 1162.)
b. Breach
i. Law
Gross negligence requires extreme conduct on the part of Hangar 18. (Rosencrans, supra, 192 Cal.App.4th at p. 1086.) "The conduct alleged must rise to the level of 'either a " ' "want of even scant care" ' " or " ' "an extreme departure from the ordinary standard of conduct." ' " ' " (Id. at p. 1082.)
ii. Padding
In Tan's FAC, she alleged she "was not provided a safety mat with the correct thickness or material that was mandated by industry standards." Hamilton's declaration was attached to Hangar 18's motion for summary judgment. Hamilton declared that, at the time of Tan's fall, there was padding measuring 14 inches thick at the base of the bouldering wall. Providing 14 inches of padding reflects care on the part of Hangar 18. Because some care is shown, the "want of even scant care" or extreme departure from the ordinary standard of conduct needed for gross negligence is not established. Accordingly, Hangar 18 met its burden, and we turn to Tan's evidence.
Burns's declaration was attached to Tan's opposition. Burns explained that there were eight inches of padding at the base of the bouldering wall. He further explained that the industry standard is one inch of padding per vertical foot of wall. Therefore, for the 15-foot wall, there should have been 15 inches of padding. Burns concluded Hangar 18 had only slightly more than half the necessary padding at the base of the bouldering wall. Tan's evidence reflects Hangar 18 had approximately one-half inch of padding per foot of vertical wall rather than one inch per foot of vertical wall.
Tan does not provide evidence demonstrating what amount of padding would constitute an extreme departure from the standard of care. For example, Tan does not provide the declaration of a medical expert reflecting the risk of an injury would be unreasonably increased for the average person at a padding level of 10 inches. Nor does Tan provide medical evidence reflecting a burst fracture to the spine is a type of injury that only happens in extreme situations.
Tan's evidence that Hangar 18 had at least half of the required padding shows some care, which is greater than the "want of even scant care" or extreme departure from the ordinary standard of conduct that is required for gross negligence. Tan's evidence fails to demonstrate that eight inches of padding may have increased the risks of harm beyond those inherent in bouldering. Accordingly, Tan has not demonstrated a triable issue of fact concerning breach, as it relates to the alleged inadequate padding.
Tan contends there may have been less than eight inches of padding because (1) the padding could break down over time, (2) Hangar has no inspection records to demonstrate that the padding did not break down, and (3) Tan testified that she fell on something hard, which indicates the padding had broken down in the area where she fell. Tan's evidence reflects irresponsibility on the part of Hangar. However, she needs to prove want of scant care or an extreme departure from the duty not to increase the risk of harm. Tan's evidence of irresponsibility does not reach the level necessary for gross negligence because Hangar provided multiple inches of padding, which indicates it conducted itself with some care, i.e., more than scant care.
iii. Instruction
In regard to instruction, in Tan's FAC she alleged she "was not provided any training, instruction, or advice to properly rock climb despite the requirement of special training." A partial transcript of Tan's deposition testimony was attached to Hangar 18's motion for summary judgment. The transcript reflects that, on the day Tan fell, she climbed three or four bouldering walls for a total of five or six climbs. On the last climb, Tan reclimbed a wall she had previously climbed. As Tan reached for the last grip, a few inches from the top of the wall, she fell. A reasonable inference to be drawn from this evidence is that the lack of instruction did not increase the inherent risk of falling. Without any instruction, Tan was able to climb multiple walls multiple times without incident. Thus, the lack of instruction was not an extreme omission on the part of Hangar 18 that increased the risk of harm, because Tan was able to perform multiple climbs without injury, and falling is an inherent risk in the sport of rock climbing (Regents of University of California v. Superior Court, supra, 41 Cal.App.4th at p. 1047). In other words, the evidence that multiple climbs were successfully conducted without instruction shows that the lack of instruction was not an extreme breach.
We now turn to Tan's evidence to determine if she can establish a triable issue of material fact. Burn's declaration reflects Tan did not receive adequate training. Burns asserts Tan should have been trained on how to use the bouldering wall because Hangar Upland "would have approximately 20 falls from the bouldering wall per day less than one of which would result in injury." Burns declared that Tan spoke to multiple employees about being new at the sport and wanting someone to train her. Burns asserted the Hangar 18 employees should not have permitted Tan to climb the bouldering wall without training. Burns contended it was Hangar 18's policy, and the industry standard, to only permit trained individuals to use a bouldering wall. Burns concluded Hangar 18's lack of instruction "fell far below the standard of care."
P. Michael Palmer, the person most knowledgeable about Hangar 18's floor pad system said, "In the industry, I think it's a good idea to have an orientation for any new climbers coming in, whether in the rope area or the bouldering area." In a deposition, Alyse Felton, who is an employee of Hangar Upland, said there is a five- to 10-minute orientation class for the bouldering wall. Felton said she would not recommend a new customer start with bouldering because there are no ropes to stop a person from falling, and therefore, rock climbing is safer for people new to climbing.
Robert Bufkin was also a Hangar Upland employee. In a deposition, Bufkin said that Hangar 18 does not provide instruction on how to fall in a safer manner. Bufkin explained, "There is no good way to fall." Bufkin said he gave Tan a bouldering orientation because it is Hangar's protocol to provide an orientation after a person signs a waiver; however, he did not independently recollect giving Tan an orientation.
At a deposition, Chen testified that no one provided him instructions on how to boulder. Chen did not tell anyone that it was his first time bouldering. Chen did not know if Tan told anyone that it was her first time bouldering. Hamilton did not have an opinion as to whether an orientation session would make bouldering safer. Hamilton explained that it was "standard operating procedure" for new Hangar 18 clients to have a bouldering orientation either before or after signing the liability release. Hamilton said Hangar 18 is a member of the Climbing Wall Association.
The Climbing Wall Association publishes "Industry Practices[:] A Sourcebook for the Operation of Manufactured Climbing Walls [(the Sourcebook)]." Chapter four in the Sourcebook is entitled, "Client Orientation, Training, and Assessment." Section 4.11 in the Sourcebook reads, "If the facility allows bouldering, the staff provides an orientation to bouldering before novice climbers are allowed to boulder without assistance or direct supervision. [¶] Comment: Bouldering is climbing that does not involve the use of a rope, harness or belay device. The client is informed of the inherent risks of bouldering, the intended function and limitation of impact attenuating surfaces or padding, the maximum height of bouldering in the facility, and where in the facility bouldering is allowed. The staff reviews the rules for bouldering in the facility, which should be prominently posted in an appropriate area."
Tan's evidence reflects it is industry standard to provide novice clients with a bouldering orientation session, that it was Hangar 18's practice to provide such a session, and that such an orientation session was not provided to Tan. The orientation session would not have taught Tan how to fall in a safer manner, but it would have instructed her on where to boulder within the facility.
Although Hangar 18 failed to provide an orientation session, there is nothing indicating that the lack of the session unreasonably increased the risk of injury to Tan. Because the session, if it had been provided, would not have informed Tan on how to fall in a safer manner, the failure to provide the session did not increase the risk of harm in a sport in which falling is an inherent risk.
The industry standard is to provide an orientation about where to boulder within the gym and the rules to follow. The rules and information about where to boulder were not provided to Tan, but there is nothing indicating that Tan was bouldering outside of the appropriate bouldering area or that she was breaking Hangar 18's rules when she fell. Thus, the lack of orientation did not increase the risk of harm. Without the orientation, Tan was still able to climb in the appropriate area and within the rules. Further, Tan performed multiple climbs without injury, without having been given an orientation session. Thus, it was possible to climb safely without an orientation. Tan's evidence does not establish that Hangar 18 conducted itself with scant care. Accordingly, we conclude Tan has not established a triable issue of material fact on the element of breach for a gross negligence cause of action.
To support her contention that Hangar 18 acted with scant care, Tan contends Hangar 18 breached its duty by not teaching her how to fall in a safer manner. Tan cites to the declaration of Carl Weil to support her contention. Weil is a risk management assessment expert for recreational programs. Weil declared that climbing industry practices are set forth in the Sourcebook. Weil further declared, "Hangar 18 failed to provide instruction on how to fall. If a customer knows how to fall the force from falling can be dissipated in movement vs. absorbed in the body. Training a person on how to fall more likely than not would have prevented the damage to Ms. Tan." Weil concluded, "Hangar 18 increased the risk of harm of bouldering by violating numerous industry practices on June 9, 2013." Weil does not explain if teaching a person how to fall is an industry standard.
Bufkin said that Hangar 18 did not provide instruction on how to fall in a safer manner. Bufkin explained, "There is no good way to fall." Thus, Bufkin's deposition tends to prove that the industry standard is not to include falling instructions within a bouldering orientation. Because it is not standard to instruct novice clients on how to fall, it cannot be shown that Hangar's failure to provide such instruction was an extreme departure from the ordinary standard of conduct.
In Tan's appellate reply brief, she cites to more sections of the record to support her assertion that the purpose of an orientation is to teach novice climbers how to fall in a safe manner. Tan cites to Burns's declaration, which provides, "It is widely the standard of safety in the industry and Hangar 18's own policy to ensure that new climbers receive training before being allowed to climb bouldering walls [citation]." This portion of the record does not reflect that instruction on falling is part of the standard bouldering orientation.
Next, Tan cites chapter 4 of the Sourcebook. In regard to bouldering, the Sourcebook provides that an orientation should inform a customer of "the inherent risks of bouldering, the intended function and limitations of impact attenuating surfaces or padding, the maximum height of bouldering in the facility, and where in the facility bouldering is allowed." The Sourcebook does not reflect that falling instructions are part of a bouldering orientation.
Finally, Tan cites to evidence that was submitted in support of her motion for reconsideration. We do not discuss this evidence because it was submitted after the trial court ruled on the motion for summary judgment. (People v. Lewis (2006) 39 Cal.4th 970, 998 [review the ruling based upon evidence available at the time of the ruling]; Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 587 [same].) In sum, Tan has not provided evidence creating a triable issue of fact on the issue of falling instructions being a standard part of a bouldering orientation, and therefore has failed to establish a triable issue of fact as to whether the lack of such instruction was an extreme departure from the ordinary standard of conduct.
E. PREMISES LIABILITY
Tan contends the trial court erred by granting summary judgment on her premises liability cause of action.
"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. [Citations.] Premises liability ' " is grounded in the possession of the premises and the attendant right to control and manage the premises[.]" ' . . . . But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases." (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
In the release, Tan agreed to the following, "By signing this agreement, I waive my right to bring a court action to recover compensation or obtain any other remedy for any injury to myself or my property or for my death, however caused, arising out of my use of the facilities of Hangar 18, now or any time in the future, whether caused by the gym's negligence or that of its officers, agents or employees." Tan voluntarily released Hangar 18 from negligence liability arising from her use of its facility. (See YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 27 [plaintiff released YMCA from negligence arising from the use of its facility].) Thus, Tan waived her right to sue for personal injuries resulting from Hangar 18's alleged negligence in maintaining its premises. (See Id. at p. 29 [plaintiff waived her right to sue for premises liability]; see also Benedek, supra, 104 Cal.App.4th at pp. 1357, 1359 [health club release of negligence can include premises liability].) As a result, Hangar 18 has shown Tan cannot prevail on her claim of premises liability.
We have addressed, ante, Tan's arguments concerning the release. Accordingly, we conclude the premises liability cause of action is barred by the release. The trial court did not err by granting summary judgment.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.