ARMINEH TAVOOSIAN VS RAGING WATERS OF CALIFORNIA LTD ET AL

Motion for Summary Judgment

Having considered the moving opposing papers, the Court rules as follows.

BACKGROUND

On August 30, 2017, Plaintiff Armineh Tavoosian

On March 26, 2019, Plaintiff filed a first amended complaint to, in part, name Defendant Palace Entertainment.

On June 26, 2020, Defendant Festival Fun Parks, LLC dba Raging Waters (“Defendant Festival”) filed a motion for summary judgment or, alternatively, summary adjudication pursuant to California Code of Civil Procedure section 437c.

A trial setting conference is scheduled for November 25, 2020.

PARTY’S

Defendant Festival asks the Court to grant summary judgment Plaintiff because (1) the alleged dangerous condition was open and obvious and (2) Plaintiff assumed the risk.

LEGAL STANDARD

The purpose of a motion for summary judgment “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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) 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 “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.” , subd. (p)(2).) Ibid.) (Avivi v. Centro Medico Urgente Med. Ctr. (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, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., ; 437c, subd. (c).)

DISCUSSION

Dangerous Condition

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) to avoid exposing others to an unreasonable risk of harm. Annocki (2014) 232 Cal.App.4th 32, 37.) [visitors’] use or to give a warning adequate to enable them to avoid the harm.”  Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty Annocki, , 232 Cal.App.4th at p. 36.)

A property owner owes no further duty to make a condition reasonably safe or give an adequate warning of a condition when the danger of the condition is so obvious that the condition itself serves as a warning.  (Kinsman v. Unocal Corp Martinez v. Chippeqa Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 123 [finding an employee did not assume the risk of an obvious danger when the employee’s employment required him to encounter a dangerous condition].)

Defendant s undisputed material facts establish the following.  Plaintiff alleges she sustained injuries as a result of slipping and falling while walking on Defendant Festival’s premises.  (UMF No. 1; FAC, ¶¶ , then returned, traversing a planted area,  and with a glass of water in her hand, bent her waist, ducked underneath the railing, and stepped over the retaining while simultaneously keeping her left foot remaining on the cement pathway.  (UMF No. 10.)  Plaintiff’s left foot slipped

The Court finds Defendant Festival has met its burden of proof injured.. apparent and the danger of climbing between the two are obvious in that it would require balancing.  Plaintiff attempted to do so one-handed.  Plaintiff does not know what caused her to fall.  In other words, plaintiff cannot even establish that there was a dangerous condition at the premises.

In sum, summary adjudication is properly granted to Plaintiff’s inability to establish that a dangerous condition existed at the defendant’s premises.  

Primary Assumption of Risk

The primary assumption of the risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [“[p]rimary ].)  “The doctrine of ‘primary’ assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. . . . Childs v. County of Santa Barbara [citation omitted].)

“Primary assumption of the risk is an objective test.  It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . . Saville v. Sierra College [citing Knight v. Jewett ].)  There is also a duty not to unreasonably increase the risks of injury to participants beyond those inherent in the activity.  (Nalwa v. Cedar Fair, L.P. of risk applies “where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport [or activity] itself.’”  (Saville, supra, 133 Cal.App.4th at p. 867 [citation omitted].)

To evaluate the applicability of the primary assumption of risk doctrine, a court must examine “the nature of the sport itself,” as well as “the defendant’s role in, or relationship to, the sport.”  (Knight, supra, 3 Cal.4th at p. 317.)  “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but Nalwa, supra, 55 Cal.4th at p. 1156 [citing Beninati v. Black Rock City, LLC ].)

Plaintiff engaged in the recreational activity of climbing over and under fixtures while Plaintiff’s foot slipped maintain her balance while having her torso bent at the waist and she climbs through a gap between two fixtures.  An inherent risk is that Plaintiff would lose her footing and fall due to the careful balancing she has to maintain.  Indeed, this is what occurred.  Plaintiff decided to traverse the fixtures, lost her footing, and fell.  The burden shifts to Plaintiff.

Plaintiff presents no evidence showing either the risk of falling was not inherent in the activity Plaintiff was engaged in or that Defendant Festival increased Plaintiff’s risk of harm.  Thus, summary judgment is properly granted.

CONCLUSION

Defendant Festival’s request for summary judgment is GRANTED.

Defendant Festival’s request for summary adjudication is DENIED as MOOT.

Defendant Festival is ordered to give notice of this ruling.

Defendant Festival is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Motion for Summary Judgment

Having considered the moving opposing papers, the Court rules as follows.

BACKGROUND

On August 30, 2017, Plaintiff Armineh Tavoosian

On March 26, 2019, Plaintiff filed a first amended complaint to, in part, name Defendant Palace Entertainment.

On June 26, 2020, Defendant Festival Fun Parks, LLC dba Raging Waters (“Defendant Festival”) filed a motion for summary judgment or, alternatively, summary adjudication pursuant to California Code of Civil Procedure section 437c.

A trial setting conference is scheduled for November 25, 2020.

PARTY’S

Defendant Festival asks the Court to grant summary judgment Plaintiff because (1) the alleged dangerous condition was open and obvious and (2) Plaintiff assumed the risk.

LEGAL STANDARD

The purpose of a motion for summary judgment “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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) 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 “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.” , subd. (p)(2).) Ibid.) (Avivi v. Centro Medico Urgente Med. Ctr. (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, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., ; 437c, subd. (c).)

DISCUSSION

Dangerous Condition

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) to avoid exposing others to an unreasonable risk of harm. Annocki (2014) 232 Cal.App.4th 32, 37.) [visitors’] use or to give a warning adequate to enable them to avoid the harm.”  Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty Annocki, , 232 Cal.App.4th at p. 36.)

A property owner owes no further duty to make a condition reasonably safe or give an adequate warning of a condition when the danger of the condition is so obvious that the condition itself serves as a warning.  (Kinsman v. Unocal Corp Martinez v. Chippeqa Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 123 [finding an employee did not assume the risk of an obvious danger when the employee’s employment required him to encounter a dangerous condition].)

Defendant s undisputed material facts establish the following.  Plaintiff alleges she sustained injuries as a result of slipping and falling while walking on Defendant Festival’s premises.  (UMF No. 1; FAC, ¶¶ , then returned, traversing a planted area,  and with a glass of water in her hand, bent her waist, ducked underneath the railing, and stepped over the retaining while simultaneously keeping her left foot remaining on the cement pathway.  (UMF No. 10.)  Plaintiff’s left foot slipped

The Court finds Defendant Festival has met its burden of proof injured.. apparent and the danger of climbing between the two are obvious in that it would require balancing.  Plaintiff attempted to do so one-handed.  Plaintiff does not know what caused her to fall.  In other words, plaintiff cannot even establish that there was a dangerous condition at the premises.

In sum, summary adjudication is properly granted to Plaintiff’s inability to establish that a dangerous condition existed at the defendant’s premises.  

Primary Assumption of Risk

The primary assumption of the risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [“[p]rimary ].)  “The doctrine of ‘primary’ assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. . . . Childs v. County of Santa Barbara [citation omitted].)

“Primary assumption of the risk is an objective test.  It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . . Saville v. Sierra College [citing Knight v. Jewett ].)  There is also a duty not to unreasonably increase the risks of injury to participants beyond those inherent in the activity.  (Nalwa v. Cedar Fair, L.P. of risk applies “where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport [or activity] itself.’”  (Saville, supra, 133 Cal.App.4th at p. 867 [citation omitted].)

To evaluate the applicability of the primary assumption of risk doctrine, a court must examine “the nature of the sport itself,” as well as “the defendant’s role in, or relationship to, the sport.”  (Knight, supra, 3 Cal.4th at p. 317.)  “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but Nalwa, supra, 55 Cal.4th at p. 1156 [citing Beninati v. Black Rock City, LLC ].)

Plaintiff engaged in the recreational activity of climbing over and under fixtures while Plaintiff’s foot slipped maintain her balance while having her torso bent at the waist and she climbs through a gap between two fixtures.  An inherent risk is that Plaintiff would lose her footing and fall due to the careful balancing she has to maintain.  Indeed, this is what occurred.  Plaintiff decided to traverse the fixtures, lost her footing, and fell.  The burden shifts to Plaintiff.

Plaintiff presents no evidence showing either the risk of falling was not inherent in the activity Plaintiff was engaged in or that Defendant Festival increased Plaintiff’s risk of harm.  Thus, summary judgment is properly granted.

CONCLUSION

Defendant Festival’s request for summary judgment is GRANTED.

Defendant Festival’s request for summary adjudication is DENIED as MOOT.

Defendant Festival is ordered to give notice of this ruling.

Defendant Festival is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.