Emerdinger v. Teng

Filed 7/26/07 Emerdinger v. Teng CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Seth Emerdinger (Emerdinger) was injured in August 2001 while he was tubingbeing towed by a motorboat while holding onto an inner tubein the Sacramento Delta. He alleged that his leg became entangled in the tow rope as a result of the boat driver turning too sharply. Emerdinger sued the owner of the boat, Howard Teng, and his son Michael Teng (a passenger), claiming that they were both negligent.[1]

Teng moved for summary judgment, arguing, inter alia, that they owed no duty to Emerdinger. They claimed that the law limited liability of a coparticipant for injuries sustained in a vigorous sport such as tubing to intentional and reckless misconduct; as a matter of law, therefore, Teng owed no duty to Emerdinger under the doctrine of primary assumption of the risk. The trial court agreed and granted Tengs motion for summary judgment.

On appeal, Emerdinger argues that the doctrine is inapplicable under the circumstances here because neither Howard nor Michael actually operated the boat at the time of the incident and were therefore not participants in the tubing endeavor. We conclude that the primary assumption of the risk doctrine does apply here and that the negligence action was therefore not maintainable against Teng. Accordingly, we will affirm the judgment entered on the order granting summary judgment.

STATEMENT OF FACTS

On the morning of August 19, 2001, Emerdinger, a member of the Skyline Council Boy Scouts of America, embarked with five other male scouting members to go tubing in the Sacramento Delta in a boat owned by Howard. The boat was a 20-foot Seaswirl Striper with a 115-horsepower outboard Evinrude motor. Emerdinger had participated in tubing on one prior occasion in the summer of 2000, but he had not previously been on the Teng boat.

Michael was operating the boat when the group departed. It was the first time that Howard had allowed Michael to operate the boat when neither he nor his wife was on board. Michael had operated the boat many times before the day of the incident in his parents presence and had towed people a number of times without any mishaps. Howard believed that his son was an experienced and capable boat operator. He allowed Michael to go without him on the day of the incident in order to give more people the opportunity to go out in the boat. Howard did so after going out with Michael the previous day to familiarize himself with the area and to make sure that his son knew how to operate the boat there.

At some time after Michael had maneuvered the boat into the channel, he turned the controls over to Kevin Colosky. Colosky had asked Michael if he could operate the boat. Michael had not previously observed Colosky operating a boat.

Emerdinger and Antony Maskevich got into the water and grabbed onto their respective tubes. Then the lines were fed into the water and the boat moved forward slowly. (The lines were each 60 feet in length.) After the lines were pulled taut, the boat gradually accelerated.

According to Emerdinger, the tubing continued without incident for about 10 to 15 minutes. Before the incident, the boat had made several turning maneuvers. The tubes picked up centrifugal force, crossed the boats wake, and [caught] some air. Emerdinger recalls hoping that the driver would . . . pilot the boat in a manner where [they] would get some force, some lateral force. Emerdinger also recalled experiencingboth on the day of the incident and during the previous time that he had gone tubingthe sensation of the tube being jerked following the boat making a sharp turn, the line going slack, and then the line catching up with the boat.

According to Emerdinger, after the boat took a really hard turn to the left, the two tubes sunk, and the lines slackened. Emerdinger noticed that Maskevich had jumped off of his tube, and Emerdinger made a quick decision to jump off of his tube also.[2] Emerdinger reasoned at the time that Maskevich was much more experienced at tubing and that if he is jumping off the tube[,] something bad is going to happen. Emerdinger pushed his tube forward in order to get away from the tube and the cord in order to avoid the type of accident that ultimately occurred. Almost immediately after jumping off of his tube, the lines became taut; Emerdinger felt Maskevichs line hit his thigh and Emerdinger was being pulled in the direction of the turn. He was then struck by Maskevichs tube.

Emerdinger shouted to Maskevich that he had been struck by his line and tube. Maskevich called out for the boat to come back. Michael told Colosky that Emerdinger was off of his tube and instructed the driver to circle back to pick him up. (Colosky did not recall receiving any direction from Michael about operating the boat before telling him to go back to pick up Emerdinger in the water.) Michael did not realize that Emerdinger was hurt until the boat approached him. Emerdinger did not know that Colosky had been operating the boat until after the rope had cut his leg.

PROCEDURAL BACKGROUND

Emerdinger filed a complaint for general negligence on March 28, 2003, naming Teng, and Pacific Skyline Council-Boy Scouts of America, as defendants. Teng filed a cross-complaint for indemnity against Colosky. Teng filed a motion for summary judgment, contending that the action was barred by the doctrine of primary assumption of the risk. The motion was opposed by Emerdinger. After a hearing, the court granted the motion based upon the defense of primary assumption of the risk, concluding that the undisputed facts establish as a matter of law that [Teng] did not owe a duty to protect [Emerdinger] from the risk of injury from sharp turns [that were] an inherent risk of the sport of tubing. Judgment was entered in favor of Teng on the summary judgment order, and Emerdinger filed a timely notice of appeal. The matter is properly subject to review by this court.[3]

After Emerdinger filed his notice of appeal, this court dismissed the appeal based upon Emerdingers failure to file a brief after the court provided him with notice pursuant to former rule 17(a) (renumbered effective Jan. 1, 2007, as rule 8.220(a)) of the California Rules of Court. Upon Emerdingers application, we set aside that dismissal by order filed July 6, 2006.[4]

DISCUSSION

I. Summary Judgment

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A summary judgment motion must demonstrate that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).)

The pleadings determine the issues to be addressed by a summary judgment motion (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, revd. on other grounds Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490), and the declarations filed in connection with such motion must be directed to the issues raised by the pleadings. (Keniston v. American Nat. Ins. Co. (1973) 31 Cal.App.3d 803, 812.) The moving party bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th atp. 850, fn. omitted.) A defendant moving for summary judgment must show that [o]ne or more of the elements of the cause of action cannot be separately established . . . by the plaintiff. (Code Civ. Proc.,  437c, subd. (o)(1).) A defendant meets its burden by presenting affirmative evidence that negates an essential element of plaintiffs claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Alternatively, a defendant meets its burden by submitting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence supporting an essential element of its claim. (Aguilar, supra, 25 Cal.4th at p. 855.) A defendant may also show a prima facie entitlement to summary judgment by establish[ing] an affirmative defense to that cause of action. (Code Civ. Proc,  437c, subd. (o)(2); see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468-469.)

Since summary judgment motions involve pure questions of law, we review the granting of summary judgment de novo. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) In performing such independent review, we conduct the same procedure employed by the trial court. We examine: (1) the pleadings to determine the elements of the claim for which the party seeks the relief; (2) the summary judgment motion to determine if movant has established facts justifying judgment in its favor; and (3) the opposition to the motionassuming movant has met its initial burdento decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Ibid.; see also Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.) We need not defer to the trial court and are not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale. (Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.)

II. Doctrine of Primary Assumption of the Risk

Our analysis of Emerdingers appeal commences with an overview of the doctrine of primary assumption of the risk that was the basis for the courts order granting Tengs motion for summary judgment. The doctrine has been explained by our high court in the companion cases of Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), and Ford v. Gouin (1992) 3 Cal.4th 339 (Ford). The court explained in Ford that the assumption of risk doctrine operates as a complete bar to a plaintiffs action only in instances in which, in view of the nature of the activity at issue and the parties relationship to that activity, the defendants conduct did not breach a legal duty of care owed to the plaintiff. (Ford, supra, at p. 342.)

In Knight, the plaintiff brought a negligence action for injuries sustained in a touch football game in which she and the defendant were participants. (Knight, supra, 3 Cal.4th at pp. 300-301.) The Supreme Court, upholding the trial courts granting of the defendants motion for summary judgment, concluded that the doctrine of primary assumption of the risk was an absolute bar to the plaintiffs claim. (Id. at p. 321.) It held: [A] participant in an active sport breaches a legal duty of care to other participantsi.e., engages in conduct that properly may subject him or her to financial liabilityonly 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. (Id. at p. 320, fn. omitted.)

The Supreme Court likewise held that the doctrine applied to bar the plaintiffs claim in Ford that arose out of injuries sustained from a barefoot waterskiing accident. The court concluded that the ski boat driver who towed the plaintiff, like the defendant-touch football participant in Knight, could be held liable only if his conduct involved intentional or reckless misconduct. (Ford, supra, 3 Cal.4th at p. 345.) It reasoned: Even when a water-skier is not involved in a competitive event, the skier has undertaken vigorous, athletic activity, and the ski boat driver operates the boat in a manner that is consistent with, and enhances, the excitement and challenge of the active conduct of the sport. Imposition of legal liability on a ski boat driver for ordinary negligence in making too sharp a turn, for example, or in pulling the skier too rapidly or too slowly, likely would have the same kind of undesirable chilling effect on the drivers conduct that the courts in other cases feared would inhibit ordinary conduct in various sports. As a result, holding ski boat drivers liable for their ordinary negligence might well have a generally deleterious effect on the nature of the sport of waterskiing as a whole. Additionally, imposing such liability might well deter friends from voluntarily assisting one another in such potentially risky sports. Accordingly, the general rule limiting the duty of care of a coparticipant in active sports to the avoidance of intentional and reckless misconduct, applies to participants engaged in noncompetitive but active sports activity, such as a ski boat driver towing a water-skier. (Ibid.)  

But the Supreme Court has subsequently explained that there are limits to the circumstances under which the doctrine will apply. The court explained that its prior statement (Knight, supra, 3 Cal.4th at p. 316) that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport[] . . . was made in the context of [its] discussion of the duty owed by parties who have some organized relationship with each other and to a sporting activity. . . . (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 481 (Parsons).) In Parsons, the plaintiff was injured after being thrown from a horse that had become frightened by noise from a garbage truck. (Id. at p. 460.) The appellate court reversed the trial courts decision granting summary judgment in favor of the defendant garbage company, concluding that under Knight, the defendant owed a duty to the plaintiff to avoid increasing the risk of harm over that inherent in the recreational activity of horseback riding, and that there was a triable issue of fact as to whether [the] defendant had breached that duty. (Parsons, supra, at p. 461.) The Supreme Court reversed because of the absence of an organized relationship between the parties: [W]hen . . . no relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty upon the defendant to avoid increasing the risk of harm to the plaintiff over that posed by the activity in which the plaintiff happens to be engaged, the defendant has no such duty. (Id. at p. 483, fn. omitted.)

The doctrine of primary assumption of the risk has been applied to bar personal injury claims arising out of participation in a variety of sporting activities. These diverse sporting activities have included snow skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063); touch football (Knight, supra, 3 Cal.4th 296); collegiate baseball (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703); little league baseball (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47); an organized long-distance bicycle ride (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211); off-roading (Distefano v. Forester (2001) 85 Cal.App.4th 1249); skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108); lifeguard training (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428); wrestling (Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939); a gymnastics stunt during cheerleading (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112); a football practice drill (Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430; judo (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525); sailing (Stimson v. Carlson (1992) 11 Cal.App.4th 1201); golf (Dilger v. Moyles (1997) 54 Cal.App.4th 1452); and ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628).

More to the point in this instance, primary assumption of the risk has been held to operate as a bar to injury suits by participants in the sports of waterskiing (Ford, supra, 3 Cal.4th 339), jet skiing (Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566), river rafting (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248), and tubing behind a motorboat (Record v. Reason (1999) 73 Cal.App.4th 472 (Record)).

III. Propriety of Summary Judgment Order

A. Applicability of Doctrine to Tubing

We examine whether it was appropriate in this instance for the trial court to have held that Emerdingers suit was barred by the doctrine of primary assumption of the risk. It is plain that tubing is the type of sporting activity to which the doctrine potentially applies. As noted, in Record, supra, 73 Cal.App.4th 472, the Second District Court of Appeal (Division Four) held the primary assumption of the risk doctrine applicable to bar the plaintiffs negligence claim against the boat operator for injuries sustained while tubing. Compiling all of the distinguishing factors, it appears that an activity falls within the meaning of sport 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. From the evidence presented, tubing meets these criteria. [The plaintiffs expert], in his declaration, described the equipment used, the force and speed experienced by the rider even when the boat is going at recommended speeds, the skill needed by the boat operator, and how the riders position affected his ability to stay on. In his deposition, [the plaintiff] described the enjoyment a rider receives from tubing as ranging from, the simple pleasure of being casually towed behind the boat to the thrill of the boat turning rapidly to get the inner tuber to go much quicker. Inner tubing thus appears to be a variation of waterskiing designed to accommodate those eager to experience the force of whipping around the wakes but lacking the ability to water-ski. Combating centrifugal force with a white-knuckled grip on the tube handles entails at least as much physical exertion as sport fishing. Skill in developing a steadfast grip and feel for the tube as it travels is required, and an experienced tube rider will obviously have a greater ability to stay on the tube than a beginner. For these reasons, we hold that tubing is a sporting activity subject to primary assumption of risk. (Id. at p. 482.)

The First District Court of Appeal (Division Two) similarly concluded that tubing was the type of sporting activity to which the doctrine potentially applied. In Bjork v. Mason (2000) 77 Cal.App.4th 544, 550 (Bjork), the court cited Record with approval in concluding that primary assumption of the risk applied to tubing. But the court in Bjork held thatunlike the plaintiffs negligence theory based upon the boat driver accelerating the craft over the posted speed limit, which was plainly barred by the doctrine (Bjork, supra, at p. 552)the doctrine did not apply as an absolute bar to the plaintiffs theory that the defendant negligently supplied faulty equipment (i.e., an old, frayed tow rope that snapped, striking the plaintiff in the eye). (Id. at pp. 552-556.)

Under Record, supra, 73 Cal.App.4th 472, and Bjork, supra, 77 Cal.App.4th 544, primary assumption of the risk potentially applied to the tubing activity that resulted in Emerdingers injuries here. The activity was identical to that in Record and Bjork, and the manner in which the injury was sustained the tow rope becoming entangled with Emerdingers leg allegedly as a result of the boat driver making too sharp a turnwas one that was a foreseeable risk of tubing. (See Ford, supra, 3 Cal.4th at p. 345 [applying doctrine to bar injury claim against boat operator for ordinary negligence in making too sharp a turn, for example, or in pulling the skier too rapidly or too slowly]; Metzger v. Barnes (1977) 74 Cal.App.3d 6 [water-skier injured when slackened tow rope onto which he was holding while preparing for ski run became taut after being run over by another water-skier].) The doctrine will not apply if the conduct is  totally outside the range of the ordinary activity involved in the sport [and thus any risks resulting from that conduct are not inherent to the sport] . . . . (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1394.) Here, the alleged errors in operating a boat, including inadequate or excessive speed and improper turning maneuvers, are clearly within the scope of ordinary activity for tubing. And, unlike the circumstances in Bjork, supra, 77 Cal.App.4th 544, this is not a case where the plaintiff, Emerdinger, sustained injuries as an alleged result of Tengs supplying a defective product.

But Emerdinger claims that the doctrine does not apply here because both Howard and Michael had a very tangential relationship to the tubing activityin other words, they were not participants and therefore could not assert that the claim was barred by primary assumption of the risk. We reject this contention. For purposes of thoroughly examining the issues, we address separately below the potential liability of Howard and Michael.

B. Potential Liability of Howard Teng

Howard was not present when the accident occurred. His role was limited to that of the owner of the boat. He knowingly supplied it to his son for the purpose of towing the young tubing participants.

As noted, the Supreme Court in Knight, supra, 3 Cal.4th at pp. 300-301, held that a participant in certain sports and activities is not liable for injury to a coparticipant unless the conduct proximately causing the injury was intentional or reckless. Assuming Howard was a participant, Emerdinger neither pleaded nor presented evidence that Howard committed acts either intentionally or recklessly that resulted in the injuries complained of. (See Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4: A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.)

But it is doubtful that Howard, through the mere act of supplying the boat that was a necessary component of the tubing activity, became a participant. The Supreme Court recently heldin the context of a suit for injuries sustained by a batsman hit by a pitch during a community college baseball gamethat the school hosting the game played a mixed role, in that its players [were] coparticipants, its coaches and managers ha[d] supervisory authority over the conduct of the game, and other representatives of the school [were] responsible for the condition of the playing facility. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161-162 (Avila).) Thus, the court concluded that the school in its capacity of having responsibility for maintaining athletic facilities [had] a . . . duty not to increase the inherent risks . . . in the context of businesses selling recreational opportunities [Citation.] (Id. at p. 162.)

The act of supplying a boat for tubing is analogous to the role of supplying a facility for a baseball game. Thus, the court in Bjork, supra, 77 Cal.App.4th 544, concluded that the mere act of supplying the boat does not result in the supplier being a participant. In Bjork, the defendant assumed two roleshe both owned and supplied the boat (and equipment) used for tubing, and drove the boat at the time the plaintiff was injured. (Id. at p. 552.)The court held that under Knight, supra, 3 Cal.4th 296, the intentional or reckless liability limitation under the doctrine of primary assumption of the risk applied only to injuries caused by a participant, and that if the persons role is one of supplying the equipment, he or she has a duty not to materially increase the risks to the participant beyond those inherent in the participation in the sport or activity. (Bjork, supra, at pp. 553-556.) Therefore, the court in Bjork concluded thatalthough the defendant, in his capacity as the boat operator, was not liable because his acts were neither intentional nor reckless (id. at pp. 551-552)evidence that the defendant-boat owner supplied a defective cable that snapped, causing injury to the plaintiff was sufficient to prevent summary judgment being entered in the owners favor. (Id. at pp. 555-556.)

Applying Bjorks analysis here, Howard owed a duty to not materially increase the risks of tubing to Emerdinger beyond those that were inherent to the activity. Thus, Howard owed no duty to remove the risks inherent in the sport of tubing by, for instance, installing a speed governor restricting the speed at which his boat could be operated. (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 133.) Howard did not supply an allegedly defective product. The boat operated as it should have; Emerdingers injury had nothing to do with a mechanical failure of the boat. As such, Howards circumstances are analogous to a supplier of a nondefective river rafting vessel (Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th 248); or to owners of sporting venues such as baseball stadiums (Avila, supra, 38 Cal.4th 148), ski resorts (Knight, supra, 3 Cal.4th 296; ODonoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188), or ice skating rinks (Staten v. Superior Court (1996) 45 Cal.App.4th 1628). In each instance, there is no liability for injuries incurred by the sports participant absent a showing that the supplier/owner materially increased the risk of injury beyond that which was inherent in the activity itself. (Cf. Bjork, supra, 77 Cal.App.4th at pp. 553-556 [potential liability for supplying defective tow rope].)

Moreover, a contrary conclusion would make no sense. Emerdinger did not sue Colosky, the driver of the boat. Such a claim would appear to have been plainly barred by the primary assumption of the risk doctrine. It would be an anomalous and unfair result, indeed, were we to conclude that Howardthe absentee owner and supplier of a nondefective boatwas potentially liable for Emerdingers injuries, while the driver who was allegedly negligent had no liability. Such a conclusion would in effect make Howard, as the absentee boat owner, an insurer of the safety of Emerdinger, as a participant in a sport having an inherent risk of injury. We hold that there was no triable issue of material fact as to the negligence claim against Howard and that the court properly granted summary judgment in his favor.

C. Potential Liability of Michael Teng

Michael, unlike his father, was present at the time of the incident. He was a member of the tubing party and was the driver of the boat prior to Emerdinger getting into the water. And he was the person who handed over the controls to Colosky and directed him to circle back to pick up Emerdinger after he observed him off of his tube. In the sport of tubinglike waterskiingit is not only the person being pulled in the water who participates; the boat driver, and to some degree, any boat passengers, including those who are designated to spot the downed tuber, are also involved in the activity. Emerdinger and Michael had some organized relationship with each other and to a sporting activity, tubing, that was necessary for the potential application of the primary assumption of the risk doctrine. (Parsons, supra, 15 Cal.4th at p. 481.) Therefore, we conclude under the circumstances that Michael was a participant for purposes of the potential application of the primary assumption of the risk doctrine.

Accordingly, under Knight, supra, 3 Cal.4th 296, and Ford, supra, 3 Cal.4th 339, Michael could be held liable only upon a showing that he intentionally or recklessly caused injury to his coparticipant, Emerdinger. Putting aside the critical failure of Emerdinger to plead intentional or reckless behavior (Government Employees Ins. Co. v. Superior Court, supra, 79 Cal.App.4th at p. 98, fn. 3)the record discloses no evidence that Michael acted intentionally or recklessly in causing Emerdingers injury. For example, Michael did not shove the driver, Colosky, or violently turn the wheel of the boat to cause the lines to slacken. At most, the record shows that Michael may have exercised poor judgment in allowing Colosky to operate the boat and thereafter failing to specifically instruct Colosky on operating the boat while he was towing Emerdinger and Maskevich. This is not the sort of higher degree of culpable conduct which establishes a potential duty under Knight and Ford. Because Michael, as a coparticipant in the tubing activity, did not intentionally injure[] another [participant] or engage[] in conduct that [was] so reckless as to be totally outside the range of the ordinary activity involved in the sport (Knight, supra, 3 Cal.4th at p. 320, fn. omitted), he owed no duty to Emerdinger. Summary judgment in Michaels favor was proper.[5]

DISPOSITION

The judgment entered on the order granting Tengs motion for summary judgment is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting P.J.

McAdams, J.

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[1] Hereafter, Howard and Michael Teng are referred to by their respective forenames. They are collectively referred to in the plural as Teng.

[2] Michael contradicted Emerdinger, testifying that Maskevich did not jump off of his tube.

[3] The record does not disclose the status of Emerdingers action against Pacific Skyline Council-BSA. Likewise, we cannot determine from the appellate record the status of Tengs cross-complaint against Colosky. Since the judgment entered on the summary judgment order disposed of all issues between Emerdinger and Teng, it is a final, appealable judgment notwithstanding the fact that the complaint may still be pending against Pacific Skyline Council-BSA. (See Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.) Tengs cross-complaint against Colosky also presents no impediment to this appeal. We have obtained from the superior court file a copy of a request for dismissal without prejudice of the cross-complaint filed by Teng on September 2, 2005, prior to entry of judgment. By separate order, we have augmented the appellate record to include this request for dismissal. The fact that the dismissal was without prejudice does not make the judgment any less appealable. Don Joses Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115 and its progeny [holding that parties stipulation to dismiss certain causes of action without prejudice in order to permit entry of judgment and appeal was improper attempt to confer appellate jurisdiction] have no application where the party dismissing causes of action without prejudice is the respondent on appeal. (Vedanta Society of So. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 525, fn. 8.)

[4] Because we have set aside the dismissal of the appeal, Tengs argument that we dismiss Emerdingers appeal due to his failure to comply with the California Rules of Court concerning the timely filing of appellate briefs is moot.

[5] We summarily reject Emerdingers further contention that Teng are liable under the doctrine of res ipsa loquitur. We have previously concluded that there was no evidence that Howard materially increased the risks of injury to Emerdinger beyond those inherent in the activity of tubing, and that Michael owed no duty to Emerdinger because of the applicability of the primary assumption of the risk doctrine. Since neither Howard nor Michael, as a matter of law, was negligent, this judicial doctrineone that is a presumption affecting the burden of producing evidence (Evid. Code,  646, subd. (b))is plainly inapplicable. Further, res ipsa loquitur requires the existence of each of three conditions, namely, (1) the accident must be of a kind which ordinarily does not occur in the absence of someones negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. [Citation.] (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489.) The doctrine cannot apply here, where neither Howard nor Michael had exclusive control over the boat that allegedly caused Emerdingers injuries. (See OConnor v. Bloomer (1981) 116 Cal.App.3d 385, 391-392.) Shahinian v. McCormick (1963) 59 Cal.2d 554a pre-Knight/Ford case cited by Emerdingerdoes not support his position. In Shahinian, the court held that it was error not to instruct on the doctrine of res ipsa loquitur where the plaintiff, a waterskier, was seriously injured after he was run over by his boat operated by the defendant attempting to pick him up. The factual circumstances here are very different than those involved in Shahinian.