The opinion
Filed 1/17/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MARK OLSON, 2d Civ. No. B324465
(Super. Ct. No. 20CV02207)
Plaintiff and Appellant, (Santa Barbara County)
v.
PATRICK SAVILLE,
Defendant and Respondent.
In this personal injury case, we hold the doctrine of
primary assumption of the risk bars liability for injuries caused
by a negligent surfer to a fellow surfer because those injuries
were caused by risks inherent in the sport of surfing.
Mark Olson appeals from the order granting summary
judgment for respondent Patrick Saville. Appellant contends
that triable issues of material fact exist as to whether respondent
is protected by the primary assumption of risk doctrine. We
disagree and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Appellant and respondent were surfing in a group at
Miramar Beach in Montecito. Respondent was riding a custom
longboard without a leash.2 Appellant caught a wave.
Respondent then “appeared out of nowhere” and “dropped in” on
the wave without looking in appellant’s direction.3 This forced
appellant “to make a fast turn correction to his left toward the
beach” and to “exit into the white water to his left.” Appellant
“grabbed both [of] his board rails (aka sides) and pushed himself
and the nose of the board slightly down and into the foam pile of
whitewater toward the deeper water and away from respondent.”
Respondent was still standing on his board heading toward the
shore. As appellant made his exit and ducked into the wave,
respondent’s board propelled backward and struck appellant’s
torso and back.
Appellant sued respondent for negligence. He alleged that
respondent “intentionally entered the wave and intentionally cut
off appellant’s path of travel, thereby forcing appellant to exit the
1 We rely on undisputed facts and allegations in the
complaint.
2 A longboard is a board that is “typically longer than nine
feet in length.” (Paul Caprara, Surf’s Up: The Implications of
Tort Liability in the Unregulated Sport of Surfing (2008) 44 Cal.
Western L.Rev. 557, 573, fn. 90 (Caprara).) Respondent’s
longboard was 10 feet 4 inches long. A leash is a cord that
attaches the ankle of the surfer to the tail end of the board.
3 “Dropping in” or “shoulder-hopping” describes a surfer
getting in the right of way of another surfer who is surfing the
same wave.” (Caprara, supra, 44 Cal. Western L.Rev. at p. 571.)
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wave.” He further alleged that respondent’s “failure to use a
leash to control [his] longboard” and his use of a “sharpened and
deadly fin” was “reckless and displayed a w[a]nton disregard for
the safety of others.” Respondent moved for summary judgment
on the ground that appellant’s cause of action was barred under
the primary assumption of risk doctrine. The trial court granted
the motion, finding “the inherent risks of the sport of surfing
include surfers ‘dropping in’ on other surfers, not wearing leashes
while riding longboards of the type used by respondent, and using
surfboards that have sharp fins.”
DISCUSSION
Appellant does not dispute that the primary assumption of
the risk doctrine applies to surfing. He contends, however, that
summary judgment is not appropriate because triable issues of
material fact exist as to whether respondent acted recklessly or
increased the sport’s inherent risks.
Standard of Review
“[A] motion for summary judgment shall be granted if all
the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)4 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 (Aguilar); § 437c, subd. (p)(2).)
“A defendant seeking summary judgment on the basis of
primary assumption of the risk must establish ‘that the
4 All unlabeled statutory references are to the Code of Civil
Procedure unless otherwise stated.
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defendant owed no legal duty to the plaintiff to prevent the harm
of which the plaintiff complains.’ [Citation.]” (Capri v. L.A.
Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1087.)
If the defendant meets this burden, the burden of production
shifts to the plaintiff to “set forth the specific facts showing that a
triable issue of material fact exists.” (§ 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at p. 849.) “There is 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.” (Aguilar, at p. 850, fn. omitted.)
“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.” (Miller v. Department of Corrections (2005) 36 Cal.4th
446, 460.)
Primary Assumption of Risk
The primary assumption of risk doctrine “precludes
liability for injuries arising from those risks deemed inherent in a
sport.” (Avila v. Citrus Community College Dist. (2006) 38
Cal.4th 148, 161.) It “rests on a straightforward policy
foundation: the need to avoid chilling vigorous participation in or
sponsorship of recreational activities by imposing a tort duty to
eliminate or reduce the risks of harm inherent in those activities.
It operates on the premise that imposing such a legal duty ‘would
work a basic alteration—or cause abandonment’ of the activity.”
(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 (Nalwa),
quoting Kahn v. East Side Union High School Dist. (2003) 31
Cal.4th 990, 1003 (Kahn).) The doctrine applies both to sports
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and recreational activities “‘involving an inherent risk of injury to
voluntary participants . . . where the risk cannot be eliminated
without altering the fundamental nature of the activity.’”
(Nalwa, at p. 1156, quoting Beninati v. Black Rock City, LLC.
(2009) 175 Cal.App.4th 650, 658.)
“[D]efendants generally do not have a duty to protect the
plaintiff from the risks inherent in the sport, or to eliminate risk
from the sport, although they generally do have a duty not to
increase the risk of harm beyond what is inherent in the sport.”
(Kahn, supra, 31 Cal.4th at p. 1004, citing Knight v. Jewett (1992)
3 Cal.4th 296, 315-316 (Knight), italics added.) A coparticipant
breaches this duty only if he “intentionally injures another player
or engages in conduct that is so reckless as to be totally outside
the range of the ordinary activity involved in the sport.” (Knight,
at p. 320.) “[C]onduct is within the range of ordinary activity
involved in a sport if that conduct cannot be prohibited without
deterring vigorous participation in the sport or otherwise
fundamentally altering the nature of the sport.” (Freeman v.
Hale (1994) 30 Cal.App.4th 1388, 1396.) Determining the nature
of a defendant’s legal duty (and the inherent risks that flow from
the activity) “depends heavily on the nature of the sport itself.”
(Knight, at p. 317.)
Appellant’s Injuries Resulted from
the Inherent Risks of Surfing
“Judges deciding inherent risk questions under Knight may
consider not only their own or common experience with the
recreational activity involved but may also consult case law,
other published materials, and documentary evidence introduced
by the parties on a motion for summary judgment.” (Nalwa,
supra, 55 Cal.4th at p. 1158.) Courts generally do not consider
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the legal conclusions of expert declarations but can receive
“expert testimony on the customary practices in an arena of
esoteric activity for purposes of weighing whether the inherent
risks of the activity were increased by the defendant’s conduct.’
[Citation.]” (Kahn, supra, 31 Cal.4th at p. 1017.) Our de novo
review includes such declarations to the extent they help us
understand the sport of surfing. (Towns v. Davidson (2007) 147
Cal.App.4th 461, 472-473, italics omitted [“A court in its
discretion could receive expert factual opinion to inform its
decision on these issues, particularly on the nature of an
unknown or esoteric activity, but in no event may it receive
expert evidence on the ultimate legal issues of inherent risk and
duty.”]; Kahn, supra, 31 Cal.4th at p. 1017 [same].)
California courts have applied the doctrine to
coparticipants in a variety of sports, such as snow skiing and
other non-contact sports, but not yet to surfing. (See, Cheong v.
Antablin (1997) 16 Cal.4th 1063, 1066 (Cheong) [holding the
doctrine barred a skier’s negligence claim against another skier
who unintentionally injured him in a collision]; Shin v. Ahn
(2007) 42 Cal.4th 482, 486 (Shin) [extending the doctrine to apply
to the non-contact sport of golf].) We note that snow skiing and
surfing have much in common: (1) “both sports involve individual
participants that use nature, either a mountain slope or wave, as
a propulsion mechanism”; (2) “[b]oth require similar equipment
in the form of skis, snowboard, or surfboard to participate”; and
(3) “the most important similarity between skiing and surfing is
the use of the right-of-way custom to promote safety and order
among participants.” (Caprara, supra, 44 Cal. Western L.Rev. at
p. 562.)
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Respondent submitted the declaration of Ian Cairns, a
champion surfer and coach, who opined that surfing is an
“extreme sport” with “many inherent risks.” Cairns stated it is
“extremely common for surfers to ‘wipe out’” and lose control of
their board given the variability of ocean conditions. “Because
‘wipeouts’ are so common, it is a known risk that a surfer may
collide with another surfer, or another surfer’s board.” He
explained the sport is largely regulated by unwritten safety
customs and practices he referred to as “‘surfing etiquette.’”
(citing Caprara, supra, 44 Cal. Western L.Rev. at p. 571.) He
stated, “[t]hese rules encompass such things as priority, right-of-
way, and sharing waves.” Nonetheless, “violating this surfing
etiquette is common among surfers.” He further opined it is “not
uncommon for surfers to surf without a leash” and “[m]any
longboard surfers particularly enjoy the challenge and freedom of
surfing without a leash” which otherwise could interfere with
their footwork and speed. Lastly, Cairns noted that surfboards
“contain between one and four fins, which assist the board with
speed and stability” and that the fins are “very sharp and can
inflict significant injury.”
Appellant’s expert did not oppose the core components of
Cairn’s opinion. He did not dispute that surfers often violate
well-established rules of etiquette. The experts appear to agree
that surfers commonly collide and lose control of their boards;
that boards have sharp fins that can cause injury; and that some
surfers choose to forego leashes because they can inhibit speed
and agility. The undisputed evidence shows that appellant’s
injuries resulted from these risks. We agree with the trial court
that the primary assumption of the risk doctrine bars appellant’s
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negligence claim absent evidence that respondent recklessly or
increased the sport’s inherent risks.
There Is No Evidence Respondent Acted Recklessly
or Increased the Inherent Risks of Surfing
Appellant relies primarily upon surfing expert Shaun
Tomson to support his contention that respondent’s conduct was
reckless. Tomson explained that “[o]ver time, the sport of surfing
has adopted the Surfing Code and Rules of Etiquette.” According
to Tomson, “surfers have a self-managed obligation to observe the
Surfers Code and Rules of Etiquette and not increase the risk of
harm to others in the water.” He described the rules of etiquette
as follows: (1) observe the right of way of others; (2) look for
other surfers before entering the wave; (3) do not interfere with,
“drop in” or cut off surfers already riding a wave; (4) hold onto
and do not let go of your board; (5) wear a surf leash so you do not
lose control of your board; and (6) be aware and communicate
with others around you. Tomson opined that respondent’s
blatant disregard of these rules constituted a “conscious and
wanton reckless disregard” for the safety of fellow surfers,
especially considering his experience in the sport.
Tomson supported his conclusions by citing the
“Leash/Legrope Policy” found in the International Surfing
Association Rule Book (ISA), which he described as “the World
Governing Body for [s]urfing and all related activities.” The
policy reads: “As a risk management precaution . . . the ISA has
a mandatory leash/legrope policy at events, due to the potential
risk to other participants.” (ISA Rule Book & Contest
Administration Manual, September 2023 Section D Competition
Rules, subsection xvii (a), p.34.) The policy further states, “[f]ree
surfing with or without a leash is at the rider’s discretion
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however the ISA recommends the use of a leash if there is a
possible danger to third parties.” (Id., subsection xvii (b).)
Appellant analogizes respondent’s failure to use a leash to
the snowboarder’s failure to use a retention strap in Campbell v.
Derylo (1999) 75 Cal.App.4th 823. Campbell reversed the trial
court’s granting of summary judgment for plaintiff on the
grounds of primary assumption of risk, finding defendant’s
failure to use a retention strap “increased the inherent risk of
injury to coparticipants from a runaway snowboard.” (Id., at
p. 829.) It noted that a local ordinance as well as a “Skier
Responsibility Code” posted at the ski resort required their use.
(Ibid.) The court also found that using a strap “would not impede
or alter the sport of snowboarding” or “chill or deter vigorous
participation.” (Id., at p. 830.) We do not consider Campbell
analogous. No law governs the use of surfboard leashes. No
signs were posted requiring their use at Miramar Beach. More
significantly, appellant does not dispute Cairns’ opinion that a
leash can alter the nature of the sport by interfering with a
longboard surfer’s “footwork and speed” and by posing a tripping
hazard to surfers who “walk” on their board. (Cf. Szarowicz v.
Birenbaum (2020) 58 Cal.App.5th 146, 166 [ice hockey expert’s
testimony that “open ice check[ing]” in a “no-check” game
increased the sport’s inherent risks raised triable issues of fact to
defeat summary judgment].)
Appellant’s expert merely described what could be done to
reduce the risks inherent in surfing. Showing respondent could
have acted with more caution does not establish he acted
recklessly. Reckless conduct is more than “‘“inadvertence”’” or
“‘“a failure to take precautions.”’” (Towns v. Davidson, supra, 147
Cal.App.4th at p. 470, citing Delaney v. Baker (1999) 20 Cal.4th
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23, 31-32.) It requires a “‘“deliberate disregard” of the “high
degree of probability”’” that an injury will occur. (Ibid.)
Although both experts acknowledged respondent may not have
followed the rules of etiquette, we are wary of relying too heavily
on such guidelines when defining the scope of an activity’s
inherent risks. (See, e.g., Shin, supra, 42 Cal.4th at p. 497, fn. 9
[failure to follow golf etiquette of yelling “fore” to minimize
chance of hitting other golfers with ball does not justify imposing
liability].)
The undisputed evidence here showed that failure to follow
the rules of etiquette is common in the surfing community.
Appellant admitted: (1) he has witnessed other surfers riding a
longboard without a leash; (2) a leash could obstruct some
movement of an advanced surfer; (3) he has witnessed prior
collisions between surfers; (4) he has witnessed another surfer
failing to maintain control of their board; and (5) he personally
has had surfers “drop-in” or “shoulder-hop” on his wave.
Respondent’s similar conduct, it follows, was not reckless or
outside the range of the ordinary activity in surfing.
“‘By eliminating liability for unintended accidents, the
doctrine [of primary assumption of the risk] ensures that the
fervor of athletic competition will not be chilled by the constant
threat of litigation from every misstep, sharp turn and sudden
stop.’ [Citation].” (Cheong, supra, 16 Cal.4th at pp.1071-1072.)
No trier of fact could reasonably find that respondent’s conduct
fell outside of the protection of the primary assumption of risk
doctrine. Vigorous participation in surfing “likely would be
chilled if legal liability were to be imposed” in these
circumstances. (Knight, supra, 3 Cal.4th at p. 318.)
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DISPOSITION
Judgment is affirmed. Respondent shall recover his costs
on appeal.
CERTIFIED FOR PUBLICATION.
CODY, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Hon. Donna D. Geck, Judge
Superior Court County of Santa Barbara
________________________________________
Law Office of Eric A. Woosley, Eric A. Woosley; The Law
Offices of Bradford D. Brown, Bradford D. Brown, for Plaintiff
and Appellant.
Freeman Mathis & Gary, Albert K. Alikin, Christian E. Foy
Nagy, and Christopher J. Fleissner, for Defendant and
Respondent.
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