This case was last updated from Los Angeles County Superior Courts on 07/04/2019 at 01:34:29 (UTC).

ANDREW STROUD VS SCUBA MANIA INC ET AL

Case Summary

On 01/29/2018 ANDREW STROUD filed a Personal Injury - Uninsured Motor Vehicle lawsuit against SCUBA MANIA INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DENNIS J. LANDIN, PATRICK T. MADDEN, MARK C. KIM and MICHAEL P. VICENCIA. The case status is Disposed - Other Disposed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1641

  • Filing Date:

    01/29/2018

  • Case Status:

    Disposed - Other Disposed

  • Case Type:

    Personal Injury - Uninsured Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DENNIS J. LANDIN

PATRICK T. MADDEN

MARK C. KIM

MICHAEL P. VICENCIA

 

Party Details

Plaintiffs, Petitioners and Defendants

STROUD ANDREW

MOSS JOHN

ANDREW STROUD

JOHN MOSS

YI ESTATE OF CATHERINE DECEASED

Respondents and Defendants

FALZONE ANTHONY

SCUBA MANIA INC

BEACH CITIES SCUBA

MOSS JOHN

CATALINA DIVERS SUPPLY LLC

GRUNDY JAMES

DOES 1 TO 100

SMITH RANDY

RANDY SMITH

JAMES GRUNDY

ANTHONY FALZONE

M/V RIVIERA

SCUBA MANIA INC.

C & N INS INC.

M/V RIVIERA DOE 3

RIVIERA CHARTERS LLC DOE 2

11 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

JORGENSEN RICHARD A.

JORGENSEN & SALBERG LLP (JORGE LOPEZ)

JORGENSEN & SALBERG LLP JORGE LOPEZ

LOPEZ JORGE

LESSER RICHARD ALLEN

SABA RYAN

Respondent and Defendant Attorneys

MARK M. WILLIAMS ESQ.; LA FOLLETTE

LERNER NEIL S. ESQ.

NELSON & GRIFFIN LAW OFFICES OF

COX WOOTTON LERNER GRIFFIN & HANSEN LLP

LAFOLLETTE JOHNSON DEHAAS FESLER & AMES

NELSON GRIFFIN LLP (RAYMOND MURO)

WILLIAMS MARK MANSFIELD

NELSON & GRIFFIN

LA FOLLETTE JOHNSON DE HAAS FESLER & AMES

 

Court Documents

Certificate of Mailing for

6/28/2019: Certificate of Mailing for

Minute Order

6/28/2019: Minute Order

Substitution of Attorney

7/2/2019: Substitution of Attorney

Legacy Document

4/12/2018: Legacy Document

Legacy Document

4/12/2018: Legacy Document

Legacy Document

4/12/2018: Legacy Document

Minute Order

4/12/2018: Minute Order

Legacy Document

4/19/2018: Legacy Document

Notice of Case Management Conference

4/19/2018: Notice of Case Management Conference

Case Management Statement

4/20/2018: Case Management Statement

Legacy Document

4/24/2018: Legacy Document

Case Management Statement

4/24/2018: Case Management Statement

Case Management Statement

4/25/2018: Case Management Statement

Case Management Statement

4/25/2018: Case Management Statement

Minute Order

5/11/2018: Minute Order

Legacy Document

5/14/2018: Legacy Document

Notice of Ruling

5/21/2018: Notice of Ruling

Legacy Document

5/23/2018: Legacy Document

75 More Documents Available

 

Docket Entries

  • 07/02/2019
  • Substitution of Attorney; Filed by Lee Jason (Plaintiff)

    Read MoreRead Less
  • 06/28/2019
  • at 08:30 AM in Department M; Court Order

    Read MoreRead Less
  • 06/28/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 06/28/2019); Filed by Clerk

    Read MoreRead Less
  • 06/28/2019
  • Minute Order ( (Court Order)); Filed by Clerk

    Read MoreRead Less
  • 03/27/2019
  • at 08:33 AM in Department M; Hearing on Motion to Compel (Answers To Special Interrogatories) - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 01/24/2019
  • Notice of Removal to Federal Court; Filed by RIVIERA CHARTERS, LLC (Defendant); JAMES GRUNDY (Defendant); JOHN MOSS (Defendant) et al.

    Read MoreRead Less
  • 01/17/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by ANDREW STROUD (Plaintiff)

    Read MoreRead Less
  • 01/17/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by ANDREW STROUD (Plaintiff)

    Read MoreRead Less
  • 01/17/2019
  • Summons (on Complaint); Filed by ANDREW STROUD (Plaintiff)

    Read MoreRead Less
  • 01/17/2019
  • Summons (on Complaint); Filed by ANDREW STROUD (Plaintiff)

    Read MoreRead Less
186 More Docket Entries
  • 02/20/2018
  • First Amended Complaint

    Read MoreRead Less
  • 02/20/2018
  • SUMMONS

    Read MoreRead Less
  • 02/20/2018
  • First Amended Compliant for Personal Injury Under General Maritime Law; Filed by ANDREW STROUD (Plaintiff)

    Read MoreRead Less
  • 02/20/2018
  • First Amended Complaint; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 01/29/2018
  • Complaint

    Read MoreRead Less
  • 01/29/2018
  • Complaint Filed; Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 01/29/2018
  • COMPLAINT FOR PERSONAL INJURY UNDER GENERAL MARITIME LAW

    Read MoreRead Less
  • 01/29/2018
  • Complaint; Filed by ANDREW STROUD (Plaintiff); JOHN MOSS (Plaintiff)

    Read MoreRead Less
  • 01/29/2018
  • SUMMONS

    Read MoreRead Less
  • 01/29/2018
  • Complaint; Filed by ANDREW STROUD (Plaintiff); JOHN MOSS (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC691641    Hearing Date: September 16, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Tanaka

Department B

Wednesday, September 16, 2020

Calendar No. 11

PROCEEDINGS

Andrew Stroud v. Scuba Mania, Inc., et al.

BC691641

  1. C & N Lins Inc.’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication as to Plaintiff Andrew Stroud (BC691641)
  2. C & N Lins Inc.’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication as to Plaintiffs Jason Lee, et al. (BC691786)

TENTATIVE RULING

C & N Lins Inc.’s Motions for Summary Judgment, or, in the Alternative, Summary Adjudication are denied.

Requests for Judicial Notice

Defendant’s requests for judicial notice are granted pursuant to Evidence Code section 452(d).

Evidentiary Objections

  1. Plaintiffs Jason Lee, et al.’s Evidentiary Objections:

Objections 1 to 7 and 12 to 17 are sustained. Objections 8 to 11 are overruled.

  1. Defendant’s Evidentiary Objections

Objections 1 to 26 are overruled.

Background

On November 15, 2016 Andrew Stroud and his fiancée Catherine Yi went on an unguided scuba dive off Casino Point in Avalon on Santa Catalina Island after successfully earning their PADI Open Water Diver certificates two months earlier. Plaintiffs allege that due to improper training and certification, as well as the issuance of defective equipment, Andrew Stroud suffered injuries and Catherine Yi died during the dive.

Plaintiffs filed suit in state court but under the general maritime laws of the United States. Defendant’s motion to strike allegations relating to admiralty jurisdiction contained in Plaintiffs’ First Amended Complaint was granted. On January 17, 2019 the operative Second Amended Complaint was filed in BC691641, brought by Plaintiff Andrew Stroud, and BC691786, brought by Plaintiffs Jason Lee, individually and as personal representative for the Estate of Catherine Yi, and Nancy Lee, individually. The cases were consolidated with BC691641 serving as the lead case. Plaintiff Stroud set forth causes of action for (1) Negligence; (2) Negligent Hiring, Training, and Supervision. Plaintiffs Lee, et al. set forth causes of action for (1) Wrongful Death; (2) Survival Action.

Defendant C & N Lins Inc., dba Catalina Divers Supply (“Defendant”) moves for orders granting summary judgment in its favor and against Plaintiff Stroud and against Plaintiffs Jason Lee, et al. Defendant moves, alternatively, for orders of summary adjudication in favor of Defendant on the following issues:

ISSUE 1: Defendant is entitled to summary adjudication on Plaintiffs’ first and second causes of action because Maritime Law is not properly applied to this case.

ISSUE 2: Defendant is entitled to summary adjudication as to Plaintiffs’ first and second causes of action because Plaintiffs signed a valid release of liability.

ISSUE 3: Defendant is entitled to summary adjudication as to Plaintiffs’ first and second causes of action because Plaintiffs assumed the risk of injury and thus accepted responsibility for proceeding consequences.

ISSUE 4: Defendant is entitled to summary adjudication as to Plaintiffs’ first and second causes of action because Plaintiffs have failed to produce evidence of a higher degree of culpability.

ISSUE 5: Defendant is entitled to summary adjudication as to Plaintiffs’ claim for punitive damages because Plaintiffs have failed to produce clear and convincing evidence of oppression, fraud, or malice.

Motions for Summary Judgment/Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP § 437c(c).

ISSUE 1: Defendant is entitled to summary adjudication on Plaintiffs’ first and second causes of action because Maritime Law is not properly applied to this case.

Defendant’s motions for summary adjudication of Issue 1 is denied.

Code of Civil Procedure § 437c(f)(1) states:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Here, Defendant’s motions for summary adjudication of Issue 1 must be denied as Issue 1 does not completely dispose of a cause of action, affirmative defense, claim for damage, or issue of duty. For example, even if the Court determines that Maritime Law is inapplicable to this case, Plaintiffs’ first and second causes of action would not be disposed of. Instead, the causes of action would proceed solely under California Law. The Court does note, however, that a discussion of Admiralty Jurisdiction is important in connection with Issue 3 and an analysis will be provided in the Court’s ruling to Issue 3.

ISSUE 2: Defendant is entitled to summary adjudication as to Plaintiffs’ first and second causes of action because Plaintiffs signed a valid release of liability.

ISSUE 4: Defendant is entitled to summary adjudication as to Plaintiffs’ first and second causes of action because Plaintiffs have failed to produce evidence of a higher degree of culpability.

The Court will analyze Issues 2 and 4 in conjunction because an analysis of Issue 4 is only relevant if the Court finds that Plaintiffs signed a valid release of liability.

Defendant’s motion for summary adjudication as to Issue 2 is denied. The Court finds that Defendant failed to meet its burden to show that there is a complete defense to the first and second causes of action based on the release of liability.

The Court finds that the release at issue in this action is not valid and enforceable, and, in fact, is ambiguous and illusory and must be interpreted against the drafter. To be valid and enforceable, “California courts require a high degree of clarity and specificity in a Release ….” Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488. “The release must clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law that the intent and effect of the document is to release his claims for his own personal injuries and to indemnify the defendants from and against liability to others which might occur in the future as a proximate result of the negligence of [the] defendants.” Id. at 1488 (internal quotation omitted).

First, Plaintiffs argue that the release is not valid and enforceable because it is buried within a separate document entitled “RENTAL AGREEMENT.” However, this argument fails because Plaintiffs fail to provide evidence to establish that Plaintiffs were unaware of the existence of the exculpatory language or were otherwise misled by the utilization of this exculpatory language in the context of a separate agreement. See, Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, 65-66.

However, the Court finds that the terms of the agreement do not specifically release Defendant from liability. The release term states as follows:

“The use of SCUBA equipment can be extremely hazardous. Proper training in the use of the equipment and a thorough knowledge of how the equipment operates can reduce hazards. This company warrants that the equipment being rented is in good operating condition at the time of rental. HOWEVER, due to the nature of the mechanics of all SCUBA equipment, it is highly subject to damage and/or change in adjustment during transportation and/or misuse. For that reason this company cannot accept any responsibility for the condition of operation of the equipment once it has been inspected.

BY SIGNING THIS AGREEMENT, THE RENTER AGREES THAT:

1. The person signing is a certified diver and that the proof of training submitted accurately and truly describes the training of the person designed as Renter herein.

2. The equipment being rented is for the exclusive use of the person signing this Agreement. The use by anyone else is strictly prohibited.

3. The Renter has been trained in the operation of SCUBA equipment and possess the competence to determine if it is functioning properly.

4. The equipment has been carefully inspected by the Renter and functions properly and is accepted based upon that inspection.

5. The Renter has inspected each item of equipment being rented and represents that he or she is familiar with and properly trained in the use of each item.

6. Because the company has no way to determine either the level of ability or the full extent of Renter's equipment knowledge, the Renter accepts full responsibility for the use of the equipment.

7. Renter promises that the equipment will be used for the purpose for which it is designed and no other purpose.”

(Defendant’s Ex. 7; Stroud, Depo. Ex. 19.)

With this release agreement, Defendant attempts to shift the responsibility for inspecting the equipment in accordance with the manufacturer’s specifications from Defendant to Plaintiffs. The manufacturer’s owner’s manual contains specific instructions for pre-dive inspections and testing and contains specific warnings regarding the failure to perform such inspections. (Plaintiff Yi’s Additional Material Fact, 18.) Here, there is no evidence that Plaintiff Stroud or decedent Yi were provided those manuals or specific instructions in order to perform a proper inspection of the materials that were provided. Thus, as to numbers 4 and 5 set forth in the release provision, Stroud or Yi were not provided the materials or knowledge to complete a meaningful inspection of the equipment. It should be noted that the type of defects in the equipment alleged by Plaintiffs, in all likelihood, could not have been detected by a simple visual inspection conducted by renters of the equipment. (Plaintiff Yi’s Additional Material Fact, 19, 27-30.) Thus, to attempt to impose a release of all claims based on a clause which seeks to shift the inspection requirement upon the renters renders the release provision illusory and unenforceable.

Defendant expressly “warrants that the equipment being rented is in good operating condition at the time of rental.” However, again as noted above, numbers 4 and 5 of the release provision appears to impose a requirement to inspect and ensure that the equipment is in good operating condition to the renters themselves. Plaintiffs could not have waived liability for Defendant’s alleged failure to maintain and inspect its equipment in accordance with the manufacturer’s standards because Plaintiffs were not provided the manual, nor the knowledge, or training to conduct such an inspection. Thus, a renter could not meaningfully verify and confirm that he or she is capable of determining whether the equipment functions properly, or whether the renter has meaningfully inspected the equipment if the manufacturer’s safety inspection procedures were not provided. Thus, the agreement does not clearly articulate that Defendant would be relieved of liability for a defect in the equipment existing before it was used. To attempt to impose a requirement to inspect for all existing defects, including ones that could not be easily detectable to even an experienced diver upon a simple visual inspection is not reasonable.

The release provision on the one hand warrants that all equipment is in good operating condition. Immediately thereafter it appears to disclaim this warranty by stating it disclaims all responsibility for the equipment once inspected. At this point it is unclear who is to conduct the inspection, Defendant or the renters. The provisions then appear to impose the inspection requirement on the renters rather than Defendant. Thus, the Court finds that the release provision in the Rental Agreement is not valid and enforceable. Any ambiguity in the release provision must be resolved against the drafting party. Civ. Code § 1654; See, also, Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1287.

Based on the ruling to Issue 2, the Court also denies the Motion for Summary Adjudication as to Issue 4.

If the Court had found the existence of a valid release of liability, such a release would not be valid if Defendant acted with gross negligence. See, Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750–51. Here, the Court need not reach this issue because the Court finds that the release of liability is unenforceable. Therefore, left standing alone, Issue 4 must be denied because it fails to completely dispose of any cause of action asserted by Plaintiffs.

ISSUE 3: Defendant is entitled to summary adjudication as to Plaintiffs’ first and second causes of action because Plaintiffs assumed the risk of injury and thus accepted responsibility for proceeding consequences.

Admiralty Jurisdiction and Maritime Law

The defense of assumption of the risk is not available in Maritime Law. See, e.g., Barber v. Marina Sailing, Inc. 36 Cal.App.4th 558, 568-572 (1995). Thus, the Court will first analyze whether Admiralty Jurisdiction applies to this case.

The Court notes that this issue was first addressed in connection with Defendant’s Motion to Strike First Amended Complaint. At that time, the Court ruled that Plaintiffs had failed to allege facts to establish admiralty jurisdiction and the application of maritime law. Federal courts have subject matter jurisdiction over maritime matters. U. S. Const., Art. III, § 2, cl. 1. California superior courts are courts of general jurisdiction. The Savings to Suitors Clause provides for concurrent jurisdiction of federal and state courts. 28 USC § 1333(1).

To establish admiralty jurisdiction and application of maritime law, the court evaluates three factors: (1) whether the injury occurred on navigable waters; (2) whether there was a substantial maritime relationship between the incident and maritime law; and (3) whether the incident had the potential to impact maritime commerce. See, Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. (1995) 513 U.S. 527, 534

“[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must assess the general features of the type of incident involved, to determine whether the incident has a potentially disruptive impact on maritime commerce[.] Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. (1995) 513 U.S. 527, 534 (internal citations and quotations omitted).

Plaintiffs’ First Amended Complaint (“FAC”) pled facts to only meet the element that the injury occurred on navigable waters. Plaintiffs had not alleged facts to establish that the activity giving rise to the incident showed a substantial relationship to tradition maritime activity. In addition, plaintiffs had not alleged facts to show that the incident has a potentially disruptive impact on maritime commerce.

Here, Plaintiffs alleged injuries stemming from a dive site off Casino Point on Catalina Island. The factual allegations of the FACs did not support the application of admiralty jurisdiction. Plaintiffs alleged facts stating that they engaged in a recreational dive in November 2016 and suffered injuries during this dive. Mere recreational swimming and scuba diving on navigable waters does not satisfy the tests for admiralty jurisdiction. See, Delta Country Ventures, Inc. v. Mangana, 986 F.2d 1260, 1263 (9th Cir. 1993); See, also, Delgado v. Reef Resorts Ltd., 364 F.3d 642, 645-46 (5th Cir. 2004). The general character of this activity does not establish a substantial relationship to traditional maritime activity and does not show a potentially disruptive impact on maritime commerce.

In addition to detailing facts regarding the incident of November 2016, Plaintiffs also alleged facts that a ship called the M/V Rivera was operating vehicles and transporting passengers. However, Plaintiffs had not alleged facts to show negligence involving the operation of a vessel, or negligence on the part of the vessel’s crew, nor facts to show that this negligence had the potential to disrupt maritime commerce and was substantially related to traditional maritime activity. See, McClenahan v. Paradise Cruises, 888 F.Supp. 120, 122-23 (D. Hawaii 1995). The Court notes that Plaintiffs filed a Second Amended Complaint specifically setting forth those facts of negligence against M/V Rivera. Then, the action was remanded to federal court. After the action was transferred back to the instant Court, Plaintiffs specifically dismissed M/V Rivera from this action.

Thus, the only remaining cause of action is for negligent rental of dive gear against the moving party. By dismissing M/V Rivera, Plaintiffs impliedly admitted that the action did not involve negligence in the operation of a vessel. Plaintiffs cannot rely on allegations solely directed against M/V Rivera, which are not applicable to moving party, to attempt to invoke Admiralty Jurisdiction in this action. Thus, the Court finds that Maritime Law does not apply to this action.

Assumption of the Risk

The Court will now analyze the applicability of the defense of assumption of risk. Defendants have failed to meet their burden to establish that they owed no duty to Plaintiff, as a matter of law, based on assumption of risk. CCP § 437c(p)(2).

“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances[.] . . . Whether a given case falls within an exception to [the] general rule, or whether a duty of care exists in a given circumstance, is a question of law to be determined [by the court] on a case-by-case basis.” Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1271–72 (internal citations and quotations omitted). Similarly, in the context of application of the primary assumption of risk doctrine, “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.

Express assumption of risk arises when a plaintiff signs a written contract or other writing waiving the risks of defendant's acts or omissions involving the plaintiff, thus relieving defendant’s duty of care. Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477. Here, for reasons already stated in the Court’s ruling to Issue 2, the Court finds that Defendant fails to establish that the release of liability is valid as an express assumption of risk.

Under the primary assumption of the risk doctrine, an absolute defense to liability exists when defendant is a member of a class to which defendant should owe no duty of care in relation to the activity in which plaintiff is involved. This is a question of duty, and when primary assumption of the risk is applied, no duty of care exists to plaintiff. See, Knight v. Jewett (1992) 3 Cal.4th 296, 310-15. However, “[a]lthough defendants generally have no legal duty to eliminate 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 v. Jewett (1992) 3 Cal. 4th 296, 315-16. The doctrine of primary assumption of risk has been applied in the context of injuries that occurred during recreational road cycling as well as recreational skateboarding on public roads. See, Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221; See, also, Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201.

Here, Defendants has provided competent uncontroverted evidence that, at the time of the injury, Plaintiff Stroud and Plaintiffs’ decedent Yi were engaged in the sporting activity of scuba diving. The Court further finds, however, that under the distinct evidence and facts presented in this case, Plaintiffs have submitted competent evidence to, at a minimum, establish an inference that Defendant may have increased the risk beyond those inherent in the sport. See, Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995.

Plaintiffs submit evidence that Defendant did not train or supervise its employees to perform their job duties in accordance with its policies and procedures. (Plaintiff Yi’s Additional Material Fact, 14.) Plaintiffs present evidence that Defendant’s employees merely completed visual inspection of its equipment rather than the type of inspection required by the manual. (Plaintiff Yi’s Additional Material Fact, 15.) As mentioned, Defendant deferred inspections to the renters themselves to complete their own inspections through their own visual inspections, and via a buddy check. (Plaintiff Yi’s Additional Material Fact, 16.) Plaintiffs also submitted evidence Defendant did not maintain service records for its rental equipment, that Defendant did not know how often or when the equipment rented was used prior to it being rented, and that Defendant did not know if or when the equipment rented by decedent was serviced. (Plaintiff Yi’s Additional Material Fact, 19-21.) Lastly, as noted earlier, Plaintiff identified defects in the equipment that, in all likelihood, could not have been adequately identified through such cursory inspections. (Plaintiff Yi’s Additional Material Facts, 19, 27-30.) Thus, this evidence is sufficient to support an inference that Defendant increased the risk beyond those inherent in the sport. See, Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995; See, also, Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 74.

ISSUE 5: Defendant is entitled to summary adjudication as to Plaintiffs’ claim for punitive damages because Plaintiffs have failed to produce clear and convincing evidence of oppression, fraud, or malice.

As to Issue 5, the Court finds that Defendant has failed to meet its burden to show that Plaintiff’s claim for damages cannot be established or that there is a complete defense to the claim for damages. Thus, the burden does not shift to Plaintiff to provide specific facts to show the existence of a triable issue of material fact as to the claim for damages. Code Civ. Proc., § 437c(p)(2). Here, Defendant presented only two facts in support of this issue. Fact 1 is not relevant to this Issue because it simply refers to a Court ruling on a pleading which is no longer the operative pleading in this case. Fact 2 simply states: “The accident that gave rise to this lawsuit was a recreational shore dive that resulted in the drowning death of Ms. Yi.” This fact only relates a simple factual recitation of this case. Neither fact 1 or fact 2 and the evidence attached in support of these facts show that Plaintiffs do not have clear and convincing evidence of oppression, fraud, or malice, and, thus, the burden does not shift to Plaintiffs to provide such evidence.

Plaintiff Andrew Stroud is ordered to give notice of this ruling.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where CATALINA DIVERS SUPPLY is a litigant

Latest cases where SCUBA MANIA INC is a litigant

Latest cases represented by Lawyer JORGENSEN RICHARD ALLEN