Overview: Once again the California Courts of Appeal have ruled against a sports participant determining he ‘assumed the risk’ inherent in the sport, in this case of skateboarding and running into a manhole cover on a street in Mammoth Lakes; read all about Bertsch v. Mammoth Community Water District in this week’s Law Review.
We live in an active recreational community. It seems like just about everyone is mountain biking, road biking, dirt biking, downhill skiing, cross-country skiing, snowboarding, running, fishing and whatever.
All of these sports involve some risk of injury, which brings us to today’s case.
Skateboarding “Pretty Fast”
In September of 2011, Richard Bertsch and his two sons were staying in Mammoth Lakes. Sons Brett and Mitchell, both skateboarding, were to meet their father at a designated intersection, then go rock climbing. Richard watched his boys coming down the hill at a “pretty fast” speed, 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 his board. His head hit the pavement and he ultimately died. A tragic accident.
Richard and his son Mitchell sued the Mammoth Community Water District (Mammoth) who inspected and maintained the manhole cover, and Sierra Star Community Association, owner of the road where the accident occurred.
Mammoth and Sierra Star defended the lawsuit claiming Brett had “assumed the risk” inherent in skateboarding, including the risk of falling.
The Bertsch family countered, arguing that the assumption of the risk 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.”
The trial court ruled for the Water District and Homeowner Association. The family appealed to the California Court of Appeal, Third Appellate District (Mono).
Assumption of Risk
As you know from religiously reading the Law Review, we’ve written a few articles about folks who participate in sports and other sport-like activities that result in injury or death without liability: water skiing, sport fishing, golf, snow skiing, baseball, white water rafting, inner-tube towed by a motorboat, flag football, two personal watercrafts crashing into each other and motorcycle “off-roading.”
Normally a person or business entity’s careless conduct injures another person, they will be found liable, but when a sport or sport-like activity is involved, the courts look into whether the injured person can be said to have “assumed the risk” inherent in the sport – resulting in no liability.
The Supreme Court has written, “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.”
Skateboarder Assumes the Risk
In our case, the Court of Appeal wrote, “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 a thrill, requires physical exertion as well as elements of skill and involves a challenge containing a potential risk of injury.’ These factors certainly apply to skateboarding.”
Ruling for Water District
In the end the Court of Appeal wrote, “To require road owners and water districts, whether private or public, to make their roads and utility access points safe for skateboarding would amount to an unnecessary burden.” Mammoth Community Water District and Sierra Star Community Association prevail.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com.
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