The opinion
Filed 6/1/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Mono)
----
RICHARD LEE BERTSCH et al.,
Plaintiffs and Appellants, C076872
v. (Super. Ct. No. CV120094)
MAMMOTH COMMUNITY WATER DISTRICT
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Mono County, Stanley L.
Eller, Judge. Affirmed.
KABATECK BROWN KELLNER, Richard L. Kellner, Brian S. Kabateck,
Douglas Rochen and Peter Klausner for Plaintiffs and Appellants.
BARBER & BAUERMEISTER, Linda Bauermeister and Robert Kostrenich for
Defendant and Respondent Mammoth Community Water District; HORVITZ & LEVY,
Barry R. Levy, Lisa M. Freeman and Scott P. Dixler; LAW OFFICES OF PATRICK J.
McDONOUGH and Patrick J. McDonough for Defendant and Respondent Sierra Star
Community Association.
1
Brett Bertsch tragically lost his life while skateboarding with his brother in the
resort town of Mammoth Lakes. The two were traveling downhill at a “pretty fast”
speed, and without helmets, when the front wheels of Brett’s skateboard hit a small gap
between the paved road and a cement collar surrounding a manhole cover, stopping the
wheels and ejecting Brett from the board. The impact of Brett’s skull with the pavement
resulted in a traumatic brain injury and ultimately death.
Brett’s father and brother, Richard and Mitchell Bertsch (plaintiffs), brought a
wrongful death action against various defendants, including Mammoth Community
Water District (Mammoth), the entity responsible for inspecting and maintaining the
manhole cover (defendants), and Sierra Star Community Association (Sierra Star), owner
of the road where the accident occurred. The trial court granted summary judgment in
favor of defendants, concluding the doctrine of primary assumption of risk barred
plaintiffs’ lawsuit as a matter of law. Plaintiffs appeal. We conclude the summary
judgment motions were properly granted and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Accident
In September 2011, Richard Bertsch and his two sons, Brett and Mitchell, were
staying at a friend’s condominium in Mammoth Lakes.1 The morning of the accident,
Brett and Mitchell spent some time “cruising” around the neighborhood on their
skateboards “for fun.” After stopping at the condominium to get some water, the two set
out again on their boards. From the condominium, they traveled down Sierra Star
Parkway, made a left turn onto West Bear Lake Road, and then “pushed [their] way up”
an incline in the road so they could turn around and come down the hill. Meanwhile,
their father was driving down Sierra Star Parkway; he planned to meet them at the
1 Throughout this opinion, we refer to Richard Lee Bertsch by his last name while
referring to his sons by their first names.
2
intersection of Sierra Star and West Bear Lake to pick them up to go rock climbing.
Bertsch reached the intersection as Brett and Mitchell were coming down the hill.
Bertsch estimated their speed to be “about eight to ten miles an hour.” Mitchell described
their speed as “pretty fast.” Neither Brett nor Mitchell was wearing a helmet. As they
reached the intersection, Brett was slightly ahead of Mitchell and was traveling on the
wrong side of the street. The front wheels of Brett’s skateboard stopped abruptly when
they hit a small gap between the paved road and a cement collar surrounding a manhole
cover, ejecting Brett from the board. The right side of Brett’s head struck the pavement
as he hit the ground, causing a traumatic brain injury and resulting in his death.
Lawsuit and Summary Judgment Motions
Plaintiffs sued Sierra Star and Mammoth, among other defendants, for wrongful
death. The lawsuit also alleged causes of action for negligence, premises liability, and
negligent infliction of emotional distress against Sierra Star. The latter cause of action
was also alleged against Mammoth. Finally, Mammoth was alleged to have maintained a
dangerous condition on public property within the meaning of Government Code
section 835.
Sierra Star and Mammoth each moved for summary judgment. The separate
motions asserted plaintiffs’ lawsuit was barred by the doctrine of primary assumption of
risk. Specifically, defendants argued skateboarding is an activity that is “‘done for
enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a
challenge containing a potential risk of injury,’” and because Brett assumed the risks
inherent in skateboarding, including the risk of falling, defendants owed no duty to
plaintiffs to protect Brett against that risk.2 Plaintiffs opposed the motions. With respect
2 Aside from primary assumption of risk, Sierra Star’s motion also claimed
plaintiffs’ lawsuit was barred because Sierra Star qualified for immunity under Civil
Code section 846, providing generally, with certain exceptions, a property owner owes no
3
to primary assumption of risk, plaintiffs argued the doctrine did not apply because Brett
“was not engaged in a sport or sport-like activity,” but was “simply cruising around on
his skateboard at a low speed.”
Trial Court’s Ruling
The trial court agreed with defendants, explaining the “critical undisputed fact”
was Brett and Mitchell deliberately turned left onto West Bear Lake Road and went
uphill a short distance “to purposely have a longer downhill ride” before meeting up with
their father to go rock climbing. As the trial court explained, “[t]here was only one
logical purpose for such behavior,” i.e., “the thrill and enjoyment of ‘cruising’” down
West Bear Lake Road on their skateboards. Distinguishing the case from Childs v.
County of Santa Barbara (2004) 115 Cal.App.4th 64 (Childs), relied upon by plaintiffs in
opposition to summary judgment, and which will be described in greater detail in the
discussion portion of this opinion, the trial court stated: “[T]o imply that skateboarding,
when one purposefully ascends a hill only to turn around and then descend that same hill
is merely a mode of ‘transportation’ as referenced in [Childs] defies reason.” Concluding
the doctrine of primary assumption of risk applied, and noting plaintiffs had not alleged
any gross negligence or recklessness in their lawsuit against defendants, the trial court
granted the motions and entered judgment in favor of defendants.
duty to keep the owner’s property safe for use by others for recreational purposes.
Mammoth’s motion also claimed entitlement to summary adjudication of plaintiffs’
Government Code section 835 cause of action, arguing: (1) the manhole cover and
concrete collar did not constitute a “dangerous condition”; (2) Mammoth had no actual or
constructive notice of the alleged dangerous condition; and (3) Mammoth qualified for
the defense of design immunity under Government Code section 830.6. Because we
conclude the trial court properly granted both summary judgment motions on assumption
of risk grounds, we have no need to address these additional arguments. We mention
them no further.
4
DISCUSSION
I
Summary Judgment Principles
We begin by summarizing several principles that govern the grant and review of
summary judgment motions under section 437c of the Code of Civil Procedure.
“A defendant’s motion for summary judgment should be granted if no triable issue
exists as to any material fact and the defendant is entitled to a judgment as a matter of
law. [Citation.] The burden of persuasion remains with the party moving for summary
judgment. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th
990, 1002-1003 (Kahn); Code Civ. Proc., § 437c, subd. (c).) Thus, a defendant moving
for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the
‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’
thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code
Civ. Proc., § 437c, subd. (o)(2).) Such a defendant also “bears the initial burden of
production to make a prima facie showing that no triable issue of material fact exists.
Once the initial burden of production is met, the burden shifts to [plaintiff] to
demonstrate the existence of a triable issue of material fact.” (Laabs v. City of Victorville
(2008) 163 Cal.App.4th 1242, 1250, citing Aguilar, supra, 25 Cal.4th at pp. 850-851.)
On appeal from the entry of summary judgment, “[w]e review the record and the
determination of the trial court de novo.” (Kahn, supra, 31 Cal.4th at p. 1003.) “While
we must liberally construe plaintiff’s showing and resolve any doubts about the propriety
of a summary judgment in plaintiff’s favor, plaintiff’s evidence remains subject to careful
scrutiny. [Citation.] We can find a triable issue of material fact ‘if, and only if, the
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.’
[Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.)
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II
The Doctrine of Primary Assumption of Risk
With participation in sports and other sport-like activities comes risk of injury.
“As a general rule, persons have a duty to use due care to avoid injury to others, and may
be held liable if their careless conduct injures another person.” (Knight v. Jewett (1992) 3
Cal.4th 296, 315 (Knight); Civ. Code, § 1714.) However, “[t]he existence of a duty is not
an immutable fact of nature, but rather an expression of policy considerations providing
legal protection. [Citation.] Thus, the existence and scope of a defendant’s duty is a
question for the court’s resolution. [Citation.] When a sports participant is injured, the
considerations of policy and duty necessarily become intertwined with the question of
whether the injured person can be said to have assumed the risk. [Citation.]” (Shin v.
Ahn (2007) 42 Cal.4th 482, 488-489.)
Under the doctrine of primary assumption of risk, a defendant generally owes no
duty to protect a participant in a sports or sport-like activity against risks that are inherent
in that activity. (Knight, supra, 3 Cal.4th at pp. 315-316.) In Knight, our Supreme Court
explained: “[A] property owner ordinarily is required to use due care to eliminate
dangerous conditions on his or her property. [Citation.] In the sports setting, however,
conditions or conduct that otherwise might be viewed as dangerous often are an integral
part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers
that might not exist were these configurations removed, the challenge and risks posed by
the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them.
[Citation.] In this respect, the nature of a sport is highly relevant in defining the duty of
care owed by the particular defendant.” (Id. at p. 315.)
Also relevant is “the defendant’s role in, or relationship to, the sport” engaged in
by the participant. (Knight, supra, 3 Cal.4th at p. 317.) This is because certain
relationships give rise to a “duty to use due care not to increase the risks to a participant
over and above those inherent in the sport.” (Id. at p. 316.) Returning to the skiing
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example, “although a ski resort has no duty to remove moguls from a ski run, it clearly
does have a duty to use due care to maintain its towropes in a safe, working condition so
as not to expose skiers to an increased risk of harm.” (Id. at p. 316.) Such a duty arises
from the ski resort-patron relationship. (See Parsons v. Crown Disposal Co. (1997) 15
Cal.4th 456, 482 [“purveyor of recreational activities owes a duty to a patron not to
increase the risks inherent in the activity in which the patron has paid to engage”].)
Similarly, “a coach or sport instructor owes a duty to a student not to increase the risks
inherent in the learning process undertaken by the student.” (Ibid.) However, as our
Supreme Court clarified in Parsons, where there is “no such (or similar) relationship”
between a defendant and the participant relating to the activity, “a defendant generally
has no duty to avoid increasing the risks inherent in [the] activity.” (Ibid.)
Thus, in determining whether defendants owed a duty to protect Brett against
falling from his skateboard as he traveled over the manhole cover, we must consider both
the nature of skateboarding and defendants’ role in Brett’s participation in that activity.
We turn to this analysis now.
III
Application of the Doctrine Precludes Liability in this Case
“Skateboarding is a type of activity covered by the primary assumption of risk
doctrine. An activity falls within that doctrine if ‘“the activity is done for enjoyment or
thrill, requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury.”’ [Citations.] These factors certainly apply to
skateboarding.” (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115 (Calhoon), quoting
Bjork v. Mason (2000) 77 Cal.App.4th 544, 550; see also Record v. Reason (1999) 73
Cal.App.4th 472, 482.)
In Calhoon, supra, 81 Cal.App.4th 108, the plaintiff (Michael) was skateboarding
in his friend’s driveway while waiting for the friend to get ready to leave with him. He
was injured while doing an “ollie,” a relatively simple trick performed by jumping up
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while on the board and simultaneously tapping the tail of the board against the ground,
causing the board to come into the air with the rider. Michael lost his balance during the
trick, fell into a planter, and impaled himself on a metal pipe in the planter. He sued his
friend’s parents for negligence and premises liability. (Id. at p. 111 & fn. 1.) The Court
of Appeal held the lawsuit was barred by the doctrine of primary assumption of risk.
After concluding skateboarding is subject to the doctrine for the reasons stated above, the
court explained: “Michael was injured because he fell. As Michael concedes, falling is
an inherent risk of skateboarding, and the presence of the pipe or the planter had nothing
to do with his falling down. The fact that Michael’s injuries were more severe than they
would have been if the pipe had not been in the planter does not make the assumption of
risk doctrine inapplicable.” (Id. at p. 116)
The court also disagreed with Michael’s assertion the defendants owed a duty to
use due care not to increase the risks of skateboarding, explaining such a duty arises only
if there is an “ ‘organized relationship’” between the defendants and the participant in
relation to the sporting activity, such as exists between a recreational business operator
and its patrons, or between a coach or instructor and his or her students. (Calhoon, supra,
81 Cal.App.4th at pp. 116-117, quoting Parsons, supra, 15 Cal.4th at pp. 481-482.) The
court explained imposing such a duty in the context of these types of relationships is
justified because the defendants are “responsible for, or in control of, the conditions
under which the [participant] engaged in the sport.” (Id. at p. 117.) However, “[t]his
policy justification does not extend to a defendant wholly uninvolved with and
unconnected to the sport,” such as the defendants in Calhoon, who neither “held out their
driveway as an appropriate place to skateboard or in any other way represented that the
driveway was a safe place for skateboarding.” (Ibid.)
Finally, the court pointed out its conclusion Michael’s lawsuit was barred by the
doctrine of primary assumption of risk was supported by policy reasons underlying the
doctrine: “Imposing a duty on residential owners to make property safe and guard
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against injuries to those voluntarily participating in the sport of skateboarding would
change the nature of skateboarding. As with skiing, the existence of obstacles in the
environment is part of the thrill of the sport. [Citation.] Homeowners would be
encouraged to close their property to skateboarders, decreasing the opportunity for
skateboarders to participate in their sport. Foreseeability and cost factors also militate
against imposing a general duty on homeowners to refrain from doing anything on their
property that could increase risks to skateboarders. It is not reasonable to expect
homeowners to predict every possible consequence of a skateboarder’s fall, especially
when doing so would require homeowners to bear large and unnecessary costs.
Requiring homeowners to make their property safe for skateboarding would create an
unnecessary burden for our community.” (Calhoon, supra, 81 Cal.App.4th at p. 117.)
Here, while Brett was not performing a trick on his skateboard at the time of the
accident, but was instead “cruising” down a hill, we agree with the trial court such an
activity is equally subject to the doctrine of primary assumption of risk. Indeed, there can
be no serious dispute that traveling downhill on a skateboard “‘is done for enjoyment or
thrill, requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’” (Bjork v. Mason, supra, 77 Cal.App.4th at p. 550,
quoting Record v. Reason, supra, 73 Cal.App.4th at p. 482), the most obvious risk of
injury coming from the prospect of falling off the board. (See Calhoon, supra, 81
Cal.App.4th at p. 116 [“falling is an inherent risk of skateboarding”].) This inherent risk
is precisely what materialized the morning of the accident and resulted in Brett’s tragic
death.
Nevertheless, relying primarily on Childs, supra, 115 Cal.App.4th 64, and Moser
v. Ratinoff (2003) 105 Cal.App.4th 1211 (Moser), plaintiffs contend the doctrine is
inapplicable to this case because Brett was neither participating in an organized
skateboarding activity nor attempting any “high risk maneuvers” on the board. We are
not persuaded.
9
In Childs, supra, 115 Cal.App.4th 64, an 11-year-old child (Tatiana) fell off her
scooter while riding on a public sidewalk and suffered injuries. She sued the County,
through her guardian ad litem, alleging the County negligently maintained the sidewalk
in a dangerous condition. The trial court granted summary judgment in favor of the
County based on assumption of risk. (Id. at p. 68.) The Court of Appeal reversed,
concluding: “[T]he record does not establish as a matter of law that Tatiana was engaged
in a sport or sports-related recreational activity covered by the assumption of risk
doctrine. Riding a scooter may be subject to the doctrine under some circumstance[s],
but we cannot conclude, as the trial court did, that riding a scooter is a recreational
activity subject to the doctrine under all circumstances.” (Id. at pp. 70-71.) The court
acknowledged, “the evidence at trial may show that Tatiana was riding her scooter in an
adventuresome and thrill-seeking manner,” but concluded the evidence presented in
support of the summary judgment motion did not establish she was doing anything more
than riding the scooter to get from one place to another. (Id. at p. 71.)
In so concluding, the Childs court distinguished Moser, supra, 105 Cal.App.4th
1211, a case in which the Court of Appeal held the primary assumption of risk doctrine
applied to “organized, noncompetitive, recreational bicycle riding” because, while riding
a bicycle purely as a means of transportation would not be subject to the doctrine,
“organized, long-distance bicycle rides on public highways with large numbers of riders
involve physical exertion and athletic risks not generally associated with . . . individual
bicycle riding on public streets or on bicycle lanes or paths.” (Id. at p. 1221.) The Childs
court concluded the same distinction applied to Tatiana’s scooter riding, but in reverse:
“Riding a scooter as a means of transportation on a public sidewalk is not the same
activity as ‘scootering’ by a number of riders in an organized event.” (Childs, supra, 115
Cal.App.4th at p. 72.) Finally, the court distinguished Calhoon based on the lack of
evidence “showing that Tatiana fell while attempting to perform a stunt or while riding
her scooter for thrills or excitement.” (Childs, supra, 115 Cal.App.4th at p. 72.)
10
Here, unlike Childs, supra, 115 Cal.App.4th 64, there was evidence submitted in
support of the summary judgment motions establishing Brett was doing more than riding
his skateboard as a means of transportation. As the trial court appropriately observed,
plaintiffs did not dispute Brett and his brother deliberately turned left onto West Bear
Lake Road and went uphill a short distance before turning around to come down the hill.
We agree with the trial court that “[t]here was only one logical purpose for such
behavior,” i.e., the thrill and excitement of coming down the hill on their skateboards.
Nor does the fact their father was meeting them at the intersection of Sierra Star Parkway
and West Bear Lake Road, as he testified in his deposition, transform the ride down the
hill into the simple “transportation” distinguished in Moser, supra, 105 cal.app.4th 1211
and assumed to be the case in Childs. Indeed, Brett and Mitchell were at that intersection
when they turned left onto West Bear Lake Road, pushed their way up the hill, and then
came back down. Thus, they did not need to come down this hill to meet their father;
they could have waited for him at the intersection. They went up the hill to experience
the thrill and excitement of coming back down on their skateboards.
We also conclude such behavior carried at least as much risk as the “ollie”
attempted in Calhoon, supra, 81 Cal.App.4th 108. It does not take an expert in
skateboarding to understand that coming down a hill on a skateboard presents a greater
challenge to maintaining one’s balance than simply riding on a level surface. Moreover,
plaintiffs did not dispute Brett was coming down the hill on the wrong side of the street
and was not wearing a helmet.3 While it might be argued the lack of a helmet did not
increase the risk of falling, but rather the seriousness of the resulting injury should a fall
3 While plaintiffs disputed the existence of oncoming traffic, they did not dispute
Brett was on the wrong side of the street. Indeed, because the manhole cover was in the
oncoming lane, Brett would have had to have been in this lane in order for the gap
between the road and the cement collar around the manhole cover to have caused the
accident.
11
occur, coming down a hill on the wrong side of the street certainly increased the risk of
falling. This is because the existence of an oncoming car while traveling down the hill
would have required quick thinking and deft maneuvering to avoid a collision. There
was no such oncoming car on the morning of the accident, but here we are simply
assessing the risk inherent in the specific activity Brett chose to engage in that morning.
Riding a skateboard down a hill in this manner is far more analogous to attempting an
“ollie” than simply riding a bicycle or scooter as a means of transportation―and quite
likely more dangerous than the trick attempted in Calhoon.
Plaintiffs further assert defendants’ negligence in failing to properly maintain the
street and manhole cover “increased the risks to Brett above and beyond those inherent in
riding a skateboard.” As previously mentioned, a similar argument was made and
rejected in Calhoon. As in that case, the defendants owed no duty to use due care not to
increase the risks of skateboarding because there was no organized relationship between
either of these defendants and Brett in relation to this activity. Borrowing from the
Calhoon analysis, neither defendant in this case “held out [the roadway or manhole
cover] as an appropriate place to skateboard or in any other way represented that the
[roadway or manhole cover] was a safe place for skateboarding.” (Calhoon, supra, 81
Cal.App.4th at p. 117.)4
Finally, the policy reasons stated in Calhoon, supra, 81 Cal.App.4th 108 for
declining to impose such a duty on homeowners apply equally to the defendants in this
case. To require road owners and water districts, whether private or public, to make their
4 Another case relied upon by plaintiffs, Solis v. Kirkwood Resort Co. (2001) 94
Cal.App.4th 354, is also distinguishable on this basis. Whereas Kirkwood Resort, as a
recreational business operator, has an organized relationship with its patrons vis-a-vis the
sport of skiing, no such relationship exists in this case.
12
roads and utility access points safe for skateboarding would amount to an unnecessary
burden.
The trial court properly granted defendants’ motions for summary judgment based
on the doctrine of primary assumption of risk.
DISPOSITION
The judgment is affirmed. Defendants, Mammoth Community Water District and
Sierra Star Community Association are entitled to costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(1).)
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
MAURO, J.
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