Skateboarding Moves Further under the Primary Assumption of the Risk Umbrella

June 8, 2016Article

The California Court of Appeal for the Third Appellate District recently upheld a trial court's motion for summary judgment ruling in favor of Sierra Star Community Association ("HOA") and Mammoth Community Water District ("Water District"), holding that the doctrine of primary assumption of risk barred plaintiff's lawsuit as a matter of law.

This case arose from a fatal accident wherein the decedent was skateboarding in a Mammoth Lakes neighborhood. As the decedent was coming down a hill, at a "pretty fast" speed, the front wheels of decedent's skateboard stopped abruptly on a small gap between the paved road and a cement collar surrounding a manhole cover. Decedent was thrown from his skateboard and died as a result.

The decedent's family (plaintiffs) sued the HOA, Water District, and other defendants for wrongful death. The HOA and the Water District defendants moved for summary judgment on the grounds that the lawsuit was barred by the doctrine of primary assumption of risk in that the skateboarding activity is a sport or sport-like activity containing inherent risks of injury. The trial court granted the motion, rejecting an argument from plaintiffs that the act of riding a skateboard alone was not a sport-like activity. Plaintiffs appealed to the Court of Appeals, Third Appellate District.

The Court of Appeal affirmed the granting of summary judgment in favor the defendants and in doing so focused on the defendant's role in, or relationship to, the skateboarding engaged in by the decedent. The Court held that the defendants did not have a duty to use due care to increase the risks of skateboarding because there was no "organized relationship" between the defendants and decedent in relation to the skateboarding activity. Indeed, the court rejected plaintiffs' argument that defendants' negligence increased the risks to decedent above and beyond those inherent in riding a skateboard because the defendants did not owe decedent any such duty. The accident did not take place in a skateboarding park, wherein the owner would be expected not to have a manhole cover in the middle of an incline, but rather it was on a road.

In addition, the Court of Appeal focused on nature of skateboarding itself, relying upon prior case law (Calhoon v. Lewis (2000) 81 Cal.App.4th 108) holding that skateboarding is an activity covered by the doctrine of primary assumption of risk because it 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." In rejecting the arguments advanced by plaintiffs, the Court of Appeal noted that the decedent was skateboarding for enjoyment rather than a mode of transportation. See Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64. Further, the Court found that public policy would not support the imposition of a duty upon residential property owners to make property absolutely safe so as to predict every possible consequence of a skateboarder's fall, or to make roads perfectly safe for skateboarders.

The doctrine of primary assumption of the risk remains one of the most effective defenses in California to property owners and businesses associated with sport-like activities. However, the doctrine remains heavily litigated across California and is routinely scrutinized by courts analyzing highly-fact sensitive cases.