McGARRY v. SAX

Filed 1/10/08

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Story Continues from part I

On March 15, 2004, McGarry filed a second amended notice of appeal purporting to appeal from: (1) The Order Granting Defendants Summary Judgment Motion filed November 5, 2003; (2) the Judgment by Court Under Code of Civil Procedure Section 437c entered December 3, 2003; (3) the Judgment of Dismissal entered December 3, 2003; and (4) the Amended Order Granting Defendants Motion for Summary Judgment entered January 14, 2004.

The parties apparently agree that the second amended notice of appeal, despite its reference to certain nonappealable orders, was adequate to perfect an appeal from the summary judgment granted as to The Wave. McGarry argues that the January 5 amended notice of appeal sufficiently identifies the Tum Yeto judgment, though like the complaint, it does not refer to Tum Yeto by name. Because the January 5 notice was timely, McGarry argues the second amended notice relates back to the earlier perfected notice of appeal from the Tum Yeto judgment.

McGarry urges the following construction of the January 5 notice:

First, the reference to the November 5, 2003, Order Granting Defendants Summary Judgment Motion should be read expansively to include everything contained in the order. This means both the portions referring to Tum Yeto and those referring to The Wave. Second, the reference to the Judgment entered . . . December 3, 2003 should be taken as a reference to the Tum Yeto judgment as the only notice of entry given by January 5 was the notice of entry of the Tum Yeto judgment and McGarry assumed the judgment as to The Wave would not be entered in light of the belated grant of oral argument.^[1]

Though we construe notices of appeal liberally, the construction urged by McGarry stretches the rule of liberal construction beyond its proper limits. The original notice of appeal clearly identified the Tum Yeto judgment as the subject of the appeal. It refers to the Order Dismissing Tum Yeto, Inc. and links it to the Judgment entered 12/3/03 as the judgment appealed from. It is reasonable to assume that any amendment to the notice would be intended to effect a change in the original. And so it appears with respect to the amended notice of appeal in this case. Gone is any reference to Tum Yeto or to an order of dismissal. The amended notice refers instead to the order granting summary judgment, though as to Tum Yeto, the court denied his summary judgment motion as moot. It is true that notice of entry of the judgment in favor of The Wave had not been provided, but we note McGarry filed the original notice of appeal concerning the Tum Yeto judgment before notice of entry had been given; the absence of notice of entry had not been a deterrent.

Viewed objectively, McGarrys amended notice of appeal reflects a determination to acquiesce in Tum Yetos dismissal and proceed with an appeal against The Wave only. While there may have been some uncertainty about the status of the judgment in favor of The Wave, that uncertainty did not affect the possible Tum Yeto appeal. The second amended notice of appeal, like the original notice, clearly refers to the Tum Yeto dismissal, but the notice was filed too late. Though we acknowledge the possibility that McGarrys intentions were otherwise, we must confine our consideration to his actions, objectively construed in light of the language used in the notice of appeal. Therefore, the Tum Yeto judgment is not a subject of the present appeal.

C. Duty

McGarry seeks to establish a cause of action for negligence. The elements of negligence are: (1) defendants obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the duty); (3) a reasonably close connection between the defendants conduct and resulting injuries (proximate cause); and (4) actual loss (damages). (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279 (Vasquez).) The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265, 80 Cal.Rptr.2d 196.) However, the elements of breach of that duty and causation are ordinarily questions of fact for the jurys determination. (Andrews v. Wells (1988) 204 Cal.App.3d 533, 538, 251 Cal.Rptr. 344.) (Vasquez, at p. 278.)

The trial court concluded that McGarry had failed to establish the first element of negligence, duty. Under general negligence principles and Civil Code section 1714, a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others. This legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actors conduct. Moreover, ones general duty of care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct, including reasonably foreseeable negligent conduct, of a third person. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.)

As a general rule, one owes no duty to control the conduct of another, or to warn those endangered by such conduct. Such a duty may arise, however, if a special relation exists between the actor and the third person that imposes a duty upon the actor to control the third persons conduct, or a special relation exists between the actor and another that gives the other a right to protection. (Doe 1 v. City of Murrieta(2002) 102 Cal.App.4th 899, 918 (Murrieta).)

Defendants note that McGarry was not injured by the skateboard tossed into the crowd but by the acts of other spectators. Because the injuries were inflicted by third persons, defendants seek to invoke the special relationship doctrine. They argue that in the absence of a special relationship, defendants had no duty to either control the conduct of the spectators or protect McGarry from such conduct.

The special relationship doctrine is most commonly invoked in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado).) A business owner may have an affirmative duty to control the wrongful acts of third persons which threaten invitees where the [owner] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.) The extent of the duty has been explored in numerous cases involving criminal acts against customers of bars and tenants of apartments, including acts perpetrated by fellow patrons and tenants. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674; see also Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819 & 823-824; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806.) The doctrine also extends to other types of special relationships, including those between common carriers and passengers, and mental health professionals and their patients. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 (Tarasoff).)

McGarrys complaint contains no allegations of a special relationship creating a duty on the part of The Wave or the other defendants to control the conduct of the crowd. Indeed, he disavows any claim of premises liability and insists that the special relationship doctrine does not apply. Though unclearly stated, his claim is not that defendants were under a duty to control the crowd and thereby prevent the crowd from inflicting injury.^[2] Rather, his claim quite simply is that defendants, like everyone, were under a duty to refrain from conduct creating an unreasonable risk of harm to others. The act of throwing a skateboard, or any other object of desire, into a crowd of skateboarders breached that duty. While alleging in the original complaint that he was kick[ed] and slugg[ed], his amended complaint asserts only that he was inadvertently injured. The injuries were not inflicted by third party criminals but resulted from the foreseeable exuberance of youth competing for a prize.

Underlying McGarrys argument is the notion that the special relationship doctrine applies to claims of nonfeasance, a failure to protect from the harmful acts of others.^[3] McGarrys claim is one of misfeasance, that defendants collectively performed an affirmative act that created an unreasonable risk of harm. The risk came not from the skateboard itself but from the foreseeable conduct of third persons in attempting to gain possession of the board. As explained by McGarry, The essence of [McGarrys] case is that throwing a skateboard into a crowd of youths is a dangerous way to promote a product, with no social good, and [defendants] could have reasonably foreseen that this method of advertising a product was likely to cause injury. We agree with McGarry. If the allegations of McGarrys complaint are correct, defendants were not passive onlookers as the events unfolded leading to McGarrys injuries. Rather, their affirmative acts set in motion the chain of events leading to the injuries in question.

In any event, the use of special relationships to create duties has been largely eclipsed by the more modern use of balancing policy factors enumerated in Rowland [v. Christian (1968) 69 Cal.2d 108 (Rowland)]. (Murrieta, supra, 102 Cal.App.4th at p. 918.) The factors considered relevant in Rowland are the following: [(1)] the foreseeability of harm to the plaintiff, [(2)] the degree of certainty that the plaintiff suffered injury, [(3)] the closeness of the connection between the defendants conduct and the injury suffered, [(4)] the moral blame attached to the defendants conduct, [(5)] the policy of preventing future harm, [(6)] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [(7)] the availability, cost, and prevalence of insurance for the risk involved. (Rowland, supra, 69 Cal.2d at p. 113.)

1. Foreseeability of Harm

As McGarry correctly discerns, foreseeability is a critical factor in determining the existence of a duty. The trial court rested its duty finding on a lack of foreseeability. Disagreeing with the trial court, McGarry references the unauthenticated videotape and Scott Saxs comments regarding the event. Sax, one of The Waves owners, stated the product toss was uneventful. Therefore, McGarry argues, The Wave admitted the product toss depicted in the videotape is typical of such events and The Wave is fully aware of the dire consequences of a product toss. McGarry also notes that Garcia, in his declaration, stated he witnessed many mishaps at other product tosses. Finally, McGarry points out that the president of Tum Yeto, Tod Swank, testified there are risks inherent in the nature of the product toss.

Defendants reply to McGarrys arguments on foreseeability reflects their view that McGarry must establish liability under the special relationship doctrine. According to defendants, McGarry was obliged to present proof of a high degree of foreseeability of prior similar incidents of violent acts. It is true that heightened foreseeability of third party criminal misconduct has been required under the special relationship doctrine before a landlord is duty bound to take expensive security precautions. (Delgado, supra, 36 Cal.4th at p. 238.) As we have already noted, however, defendants reliance on the special relationship doctrine is misplaced. For that reason, their related arguments on foreseeability miss the mark as well.

McGarry was not obligated to prove similar instances of injury during a product toss conducted by defendants. It is the general character of the event that is required to be foreseeable. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-58 (Bigbee).) [F]oreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct. [Citation.] One may be held accountable for creating even the risk of a slight possibility of injury if a reasonably prudent [person] would not do so. [Citations.] (Id. at p. 57.)

Still, [t]o support a duty of care, the foreseeability must be reasonable. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 402 [95 Cal.Rptr.2d 786, 97 Cal.Rptr.2d 12] (Juarez); Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306 [34 Cal.Rptr.2d 498].) The Court of Appeal has articulated the standard as follows: The reasonableness standard is a test which determines if, in the opinion of a court, the degree of foreseeability is high enough to charge the defendant with the duty to act on it. If injury to another is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct [citations], we must label the injury reasonably foreseeable and go on to balance the other Rowland considerations. (Sturgeon, supra, at p. 307.) (Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 406.)

Foreseeability for purposes of duty cannot be divorced from the facts underlying an injury. Nonetheless, it is a question of law. While defendants quibble with the evidentiary showing McGarry made as to prior instances of injuries at product tosses, they make no effort to persuade us that McGarrys injuries were unforeseeable. Indeed, in asserting the defense of primary assumption of risk, they assume that McGarry and the other participants should have foreseen the possibility of injury. Their assumption is reasonable. Omniscience is not required to envision what will happen when a valuable object, prized by young athletic males, is tossed among them. What makes this form of prize dispersal appealing is the very conduct by the participants that makes it hazardous. The inevitable melee, invoking images of hungry animals at feeding time, provides entertainment for spectators and participants alike. However, the risk of injury is apparent. The fact that injuries did not occur on previous occasions is less a commentary on the foreseeability of harm than on the fortuitousness of life.

As previously discussed, the fact that the harm was inflicted by third parties acting badly does not insulate defendants from liability. If the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent, such reaction whether innocent or negligent does not prevent the actor from being liable for the harm caused thereby. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 47 (Weirum).) The reaction of the crowd in this instance was reasonably foreseeable. Generally, where the risk of injury is foreseeable, a person is under a duty to use care in his or her own actions so as not to create an unreasonable risk of injury to others.

2. Primary Assumption of Risk

However, [t]he doctrine of primary assumption of the risk as defined by the court in Knight v. Jewett [(1992)] 3 Cal.4th 296 [(Knight)] acts as a limitation to this general rule, recognizing that in certain situations the nature of the activity at issue is such that the defendant does not owe a legal duty to the plaintiff to act with due care. (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 529 (Bushnell).)

The doctrine of primary assumption of risk is most frequently applied to sporting activities where conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. (Knight, supra, 3 Cal.4th at p. 315.) Courts should not hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport because in the heat of an active sporting event . . . , a participants normal energetic conduct often includes accidentally careless behavior. . . . [V]igorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068 (Cheong), quoting Knight, supra, 3 Cal.4th at p. 318.)

For these reasons, the general test is that a participant in an active sport breaches a legal duty of care to other participants -- i.e., engages in conduct that properly may subject him or her to financial liability -- only if the participant 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. (Cheong, supra, 16 Cal.4th at p. 1068, quoting Knight, supra, 3 Cal.4th at p. 320.)

However, the doctrine is not limited to sports, as the Supreme Court recognized in Knight: Whether a duty exists does not turn on the reasonableness or unreasonableness of the plaintiffs conduct, but rather on [(1)] the nature of the activity or sport in which the defendant is engaged and [(2)] the relationship of the defendant and the plaintiff to that activity or sport. (Knight, supra, 3 Cal.4th at p. 309.) It is the nature of the activity and the parties relationship to it that determines whether the doctrine applies -- not its characterization as a sporting event.

Though most cases in which the doctrine of primary assumption of risk exists involve recreational sports (see, e.g., Ford v. Gouin (1992) 3 Cal.4th 339 [water skiing]; Knight, supra, 3 Cal.4th 296 [touch football]; Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [snow skiing]; and Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248 [white water rafting]), the doctrine has been applied to dangerous activities in other contexts (see, e.g., Saville v. Sierra College (2005) 133 Cal.App.4th 857 [training in peace officer takedown maneuvers]; Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012 (Hamilton) [training on physical restraint methods]; Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 [practice of cheerleader routines]; Bushnell, supra, 43 Cal.App.4th 525 [practice of moves in judo class]; and Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [injury to nurses aide by nursing home patient]).

The activity here in question has aspects of a competitive sporting event. A product is tossed into a crowd of young people who have chosen to try and retrieve it in competition with others. While McGarry disputes that a separate area was set aside for the product toss, there is no dispute that he was a willing participant in the competition. McGarry disclaims an appreciation of the risk, asserting his observation of previous tosses revealed only tame activity. However, the risk is self-evident.^[4] The products were not distributed to customers who waited politely in line for their turn; a limited supply of products was thrown into a throng of competitors. The more precious the prize, the more intense the rivalry and the greater the struggle. As he recognized in his entreaty of the product distributors to toss the skateboard to him, his size placed him at an advantage. Part of the thrill of a product toss of this nature is the unpredictability of where the product might land and the uncertainty of who might be successful in wresting control of it. That a competitor might fall and others land around and on him in an effort to secure the prize is an inherent risk of the competition.

We therefore agree with the trial court that defendants did not owe McGarry a duty of care, though we reach this conclusion despite our disagreement with much of the trial courts analysis. The determination of duty in this case does not hinge on foreseeability but rests on a consideration of the nature of the activity and the relationship of the parties to that activity. While the trial court found a triable issue of fact on the issue of assumption of risk, reasoning that it was not clear what dangers McGarry was aware of at the time of the incident, subjective appreciation of the risk is not a requirement for application of the primary assumption of risk doctrine. We are not bound by the trial courts rationale.

We conclude that the doctrine of primary assumption of the risk bars McGarrys claim. In light of our conclusion that defendants owed no duty to McGarry, the remaining issues of the appeal are rendered moot.

DISPOSITION

The judgment in favor of The Wave is affirmed. The Tum Yeto judgment is not a subject of the present appeal. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.276(a)(4).)

RAYE , J.

We concur:

SCOTLAND, P.J.

SIMS , J.

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part B of the Discussion.

^[1] Defendants dispute what they regard as McGarrys claim of ignorance as to the existence of two separate judgments on December 3, 2003. As noted earlier, any subjective claims of confusion or ignorance cannot be based on statements in a brief unsupported by the record. We consider McGarrys claim to be that the notice of appeal should be construed in light of the absence of a notice of entry of the December 3 judgment in favor of The Wave.

^[2] Nor, for that matter, does he appear to claim that defendants efforts at crowd control were inadequate or that their security did not act reasonably.

^[3] As noted in Tarasoff, supra, 17 Cal.3d at page 435, footnote 5, [t]his rule [that one person owes no duty to control the conduct of another] derives from the common laws distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter.

^[4] In any event, Primary assumption of the risk is an objective test. It does not depend on a particular plaintiffs subjective knowledge or appreciation of the potential for risk. (Saville v. SierraCollege (2005) 133 Cal.App.4th 857, 866.)