Opinion
2d Civil No. B224772 Super. Ct. No. 1304787
08-03-2011
JENNIFER FISHER, Plaintiff and Appellant, v. OLDE TOWNE TOURS, LLC, Defendant and Respondent.
Richard E. Damon, PC, and Richard E. Damon for Appellant. Kaye, Rose & Partners, LLP, Frank C. Brucculeri and Michelle E. Ceja, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Barbara County)
Appellant Jennifer Fisher was injured when her inflatable dinghy was struck by a large wave. She filed a lawsuit against the tour operator which owned the dinghy alleging negligence and product liability causes of action. The trial court granted summary judgment to the tour operator on the ground that the liability waiver appellant signed barred the negligence claims. The product liability claims failed as a matter of law because the tour operator was only an end user of the dinghy. We affirm.
Facts and Procedural History
Appellant Jennifer Fisher and her husband took a Panama Canal cruise on a Princess Cruise Line vessel. During a shore trip to St. Thomas, United States Virgin Islands, they took a "Mini-Boat Adventure and Snorkel" tour operated by respondent Olde Towne Tours, LLC (Olde Towne). The tour involved a five-mile trip in a two-person, twelve-foot inflatable dinghy to a snorkeling site. Prior to the excursion, Fisher and her husband signed a liability release entitled Mini-Boat Adventure "Release and Assumption of Risk" which Olde Towne required of tour participants. The release states in relevant part:
"I acknowledge and agree by my signature below that I have read and am aware of the following terms and conditions relating to any activities that I may undertake on or from Mini Boat Adventure Tour. I declare that I am fit and well and not suffering from any medical conditions, including pregnancy, recent surgeries, back or neck injuries which may preclude me from swimming, snorkeling or boating activity. Myself, my heirs, executors, administrators or assigns hereby hold harmless and release forever Olde Towne Tours, LLC and the owners and operators of Mini Boat Adventure Tour and its successors, assigns, heirs, employees and agents from all rights, claims, demands, damages, costs and causes of action of whatever kind or nature arising from any damages, liabilities, or injuries I may sustain, however caused, as a result of any such activities with Olde Towne Tours, LLC."
After signing the release, Fisher, her husband, and two other participants were given a training session on dinghy operation and safety, including how to sit in the dinghy. Fisher's husband, who had no boating experience, operated the dinghy, sitting in the rear of the vessel. Fisher was seated on a fiberglass bench in the forward portion of the dinghy. The dinghy assigned to Fisher and her husband had no grab handles for use in case of rough seas. Instead, a three-to-four-foot mooring line attached to the front of the boat was available for that use.
The excursion consisted of four dinghies, each of which was powered by a motor. Employees of Olde Towne led the group in a dinghy which was slightly larger and more powerful than those given to tour participants. Fisher and her husband followed the leader. Fisher's sister and her husband were in a third dinghy. A fourth dinghy, also operated by Olde Towne employees, followed.
During the trip to the snorkeling site, Fisher's dinghy was struck by a large wave. Fisher grabbed the mooring line, but it did not provide a secure hand hold. Fisher lost her balance and fell backward against the edge of the bench, striking her back. She sustained a serious injury to her lumbar vertebrae that required surgery upon her return to California.
Fisher filed a complaint against Olde Towne alleging causes of action for negligence, product liability-negligence, strict product liability, breach of warranty, and negligent entrustment. Olde Towne filed a motion for summary judgment asserting that the liability release signed by Fisher barred the negligence claims and that the product liability claims were barred because Olde Towne was not a designer or manufacturer or distributor of the dinghy. Fisher opposed the motion, asserting summary judgment was inappropriate because material issues of fact existed as to whether the release clearly and unambiguously notified Fisher she was releasing Olde Towne from liability for her injury, the dinghy was defective because it had no grab handles and the release did not cover defective equipment, and Olde Towne was liable for the defective condition of the dinghy because it either assembled the dinghy or modified it by removing the grab holds.
Olde Towne provided evidence from its manager that the particular brand of dinghy in which Fisher was injured was not equipped with grab holds for passengers. There were grab holds on the outside of the vessel for use when it was hauled into and out of the water. The manager said that the dinghies arrived from the manufacturer fully assembled.
Fisher submitted her declaration stating that the dinghy in which she was injured was old and patched and had marks showing that grab holds had at one time been attached to the dinghy but had been removed. She said that when the injury occurred, the lead dinghy, operated by an Olde Towne employee, was going too fast for conditions and that her husband necessarily was required to go faster than was safe. She submitted the deposition of one of Olde Towne's employees who stated that he had worked for Olde Towne for approximately one year. He believed that the dinghies required some assembly after they were received from the manufacturer.
The trial court granted summary judgment, concluding that the negligence claims were barred by the written release and the products liability claims were not applicable to Olde Towne as an end user of the dinghy.
DISCUSSION
Standard of Review
"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.) Summary judgment is appropriate "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).)
A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no merit—that is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subds. (a), (p)(2).)
On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.) We apply the same procedure used by the trial court: We examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85.)
The Written Release Bars the Negligence Claims
California courts have long recognized that a written release may exculpate a tortfeasor from future ordinary negligence or misconduct. (E.g., Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356; Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490.) To be valid, the release "must be clear, unambiguous and explicit" in expressing the intent of the parties. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.) In addition, the release must not be against public policy. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 779-780.) In the absence of extrinsic evidence, the scope of a release is determined by its express language (Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, 69) as a matter of law (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360). In the context of recreational activities, agreements between private parties that release, indemnify, or exculpate one party from liability are generally upheld as not being against public policy because such activities do not involve an essential public service. (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [release for snow skiing]; Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 343 [release for parachute jumping].)
For a release to be enforceable, not every conceivable risk has to be spelled out in the agreement. It is only necessary that the risk that results in injury to the releasing party be reasonably related to the object or purpose for which the release was given. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757; see also Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601.) In Madison, a participant in a scuba diving class drowned. Prior to beginning the course, the decedent executed a release agreement that purported to absolve defendants of all liability in connection with the activity. The trial court denied defendants' motion for summary judgment, finding there were issues of material fact as to whether the decedent intended to assume the risk of injury. The Court of Appeal reversed, noting that "the law imposes no requirement that [the decedent] have had a specific knowledge of the particular risk which resulted in his death. Under the agreement [the decedent] clearly accepted responsibility for the consequences of any act of negligence by the defendants." (Madison, at p. 601.) The court also found that there could be no issue of fact as to whether defendants' negligent act was reasonably within the potential dangers encompassed by the release. While the express terms of any release agreement must be applicable to the particular misconduct of the defendant, "that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties." (Ibid.)As the court explained, "[w]here . . . a clear unambiguous release of all liability for any act of negligence has been given, then it is, by definition, 'applicable' to the defendant's negligent act, whatever that act may have been." (Ibid.)
This court's decision in Booth v. Santa Barbara Biplane Tours, LLC (2008) 158 Cal.App.4th 1173, also is instructive. The plaintiffs in that case filed a personal injury action against a biplane touring company after they were injured when the plane in which they were flying during a sightseeing trip lost power and made an emergency landing. Plaintiff's signed a release and waiver of liability about 30 minutes before boarding the plane. The trial court granted summary judgment in favor of the touring company, ruling that plaintiffs' claims for negligence and breach of implied warranty were barred by the release agreement. We affirmed the judgment. Although plaintiffs argued that the release was hurriedly signed, it was undisputed that they signed the release before the flight. Plaintiffs' argument that the release was void as against public policy also failed because the complaint did not allege that defendant violated any law or regulation. Defendant also did not provide an essential service as there was no obligation or compulsion for plaintiffs to go on a sightseeing flight. The court emphasized the plaintiffs' particular interest in the activity had no bearing on whether the public interest was involved. (Id. at p. 1179.)
The release that Fisher signed is a one-page document entitled "Release and Assumption of Risk." The language of the release is clear and unequivocal in providing that Olde Towne and its employees shall be held harmless from "any damages, liabilities, or injuries [Fisher] may sustain, however caused, as a result of any such activities with Olde Towne Tours, LLC." (Italics added.) Fisher admitted in her deposition that she signed the release. The words "Release and Assumption of Risk" are also in bold typeface on the document. While the risk that gave rise to Fisher's injury, a large wake from another boat, is not specifically listed in the release, pursuant to Madison and its progeny, every risk Fisher may have encountered during the excursion did not have to be specified for the release to be enforceable. Rough seas are an inherent risk in boating and snorkeling and are clearly related to the purpose for which the release was given. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757.)
Fisher argues that a triable issue of material fact exists as to whether the release she signed expressly insulates Olde Towne from liability resulting from its own negligence in supplying a defective dinghy and an incompetent tour guide, citing Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476. Cohen, however, is distinguishable from the present case. There, plaintiff rented a horse from defendant and signed an "Acknowledgement of Risk" form. While riding on a recreational trail, plaintiff fell from her horse and was injured when the trail guide, who was an employee of defendant, suddenly caused her horse to gallop without warning. The trial court, on summary judgment, ruled that defendant had no liability to plaintiff on her negligence claim. The Court of Appeal reversed, holding that the "Acknowledgement of Risk" form did not unambiguously apply to injuries caused by the negligence of defendant or its employees as the form merely explained the risks inherent in horseback riding and that plaintiff was assuming the risk of any injury. (Id. at p. 1487.) Quoting the Restatement Second of Torts, the court stated that "[i]n order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. . . ." (Id. at p. 1488.)
Unlike Cohen, the release here does not simply state that there are inherent risks in boating and snorkeling and that plaintiff is assuming responsibility for any injuries she may sustain as a result of those risks. On the contrary, the release explicitly provides that Fisher is releasing Olde Towne and its employees from any and all liability as a result of boating and snorkeling, however caused. As the court stated in Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at page 1357, "[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant. '"It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given."' [Citation.] The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release." Here, the clear and express intent of the release was to encompass claims for personal injuries caused by the acts of negligence of defendants or its employees. Fisher does not dispute that she willingly executed the release.
There also is no merit to Fisher's contention that the release is not enforceable because it does not contain the word "negligence." In Sanchez v. Bally's Total Fitness Corp., supra, 68 Cal.App.4th at page 67, the court held that a release which stated that a fitness club was released "for any claims for injuries or damages" "arising out of or connected with the use of the fitness center," but did not contain the word "negligence," was sufficient to release the club from liability for injuries sustained during an aerobics class.
Fisher's reliance on Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, and Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, also is misplaced. Both these cases are factually inapposite. In Eriksson, the Court of Appeal reversed summary judgment for a horseback riding coach whose student was killed when her horse tripped over a hurdle in competition finding that the release signed by the student did not exculpate the coach from gross negligence, pursuant to City of Santa Barbara v. Superior Court, supra, 41 Cal.4th 747. No allegations of gross negligence are made in this case. In Huverserian, the Court of Appeal reversed summary judgment on the ground that the express terms of a release signed in connection with rental of scuba diving equipment only applied to "boat dives and multiple day rentals" and plaintiff's use of the equipment met neither of these conditions. (Huverserian, at p. 1467.)
Fisher's remaining arguments also are without merit. Fisher's contention that she was not engaged in a recreational sport when she was injured but was merely a passive passenger in the dinghy is insufficient to defeat the scope of the release. (See, e.g., Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at p. 1358 [fitness center release broad enough to cover non-sports related injuries]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010 [release enforced against plaintiff injured by defective barrier while observing automobile race].)
Fisher's assertion that Olde Towne is a common carrier and subject to a stricter standard of care is contrary to case law. (See Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 764, fn. 8 [white water rafting provider not a common carrier because it is not bound to carry a person for any reason unless the person enters into an agreement to do so]; see also Samuelson v. Public Utilities Com. (1951) 36 Cal.2d 722, 730 [same]; and see Booth v. Santa Barbara Biplane Tours, LLC, supra, 158 Cal.App.4th at p. 1179 [aerial sightseeing tour provider not a common carrier].)
Fisher also makes numerous arguments and relies on cases regarding the defense of implied assumption of the risk, such as foreseeability and duty to provide safe equipment. These arguments have no relevance where, as here, a clear and unambiguous written release is involved. (See Allabach v. Santa Clara County Fair Assn., supra, 46 Cal.App.4th at p. 1012 [distinguishing implied assumption of risk cases from cases involving written release—release is effective without analysis of activity and relationship of parties to that activity]; see also Cohen v. Five Brooks Stable, supra, 159 Cal.App.4th at p. 1484 ["With respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release"]; see also Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 590, fn. 2 ["if the express assumption of risk in the release applies, the implied assumption of risk principles . . . would not come into play"]; and see Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1374-1375 ["the rules applying to implied assumption of the risk (either 'primary' or 'secondary') do not affect the rules relating to express assumption of the risk, or express, contractual release of liability"].)
The release signed by Fisher is clear and unambiguous and exculpates Olde Towne from liability for negligence.
Olde Towne Is Not Liable Under a Products Liability Theory
Fisher asserts that Olde Towne is liable under a strict liability or breach of warranty theory for providing a defective product—an inflatable dinghy without grab holds. Olde Towne contends that it cannot be held responsible for Fisher's injuries under any products liability theory because it did not design, manufacture, distribute, test, or assemble the dinghy in which Fisher was injured.
The concept of products liability, based either on negligence or strict liability, is explained in the Restatement Third of Torts. Section 20 of the Third Restatement states the scope of liability as including "one who sells or otherwise distributes" a product. More specifically, one "otherwise distributes a product 'when, in a commercial transaction other than a sale, one provides the product to another either for use or consumption or as a preliminary step leading to ultimate use or consumption.'" One also "otherwise distributes a product" when, in a commercial transaction, one "'provides a combination of products and services'" and either the transaction taken as a whole or the product component, satisfies the above criteria for either a sale or a distribution. (6 Witkin, Summary of Cal. Law (10th ed. 2005) § 1508, pp. 963-964.)
The rule does not apply to consumers or persons or entities who merely furnish services to the public rather than products. Thus, in Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 259, the court held that the conductor of a commercial raft trip, as the provider of a recreational service, was not subject to a product liability claim for an alleged defect in the design of a raft. The plaintiff in that case was a participant in a raft trip sponsored by defendant and was injured when she hit her head on a metal rail in the raft. (See also Ontiveros v. 24 Hour Fitness USA, Inc. (2008) 169 Cal.App.4th 424, 434-435 [dominant purpose of plaintiff's membership agreement was to provide fitness services; therefore, defendant not liable under products liability theory where plaintiff injured herself on an exercise machine with an allegedly defective component part]; and see Haynes v. National R.R. Passenger Corp. (C.D.Cal. 2006) 423 F.Supp.2d 1073, 1085 [Amtrak not liable under products liability theory because it provided transportation services and use of a seat was incidental to those services]; see also Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 678-679 [pharmacist who supplied defective drugs could not be held liable under strict products liability theory because he provided a service, even though he sold the drugs as part of providing that service].)
A shore excursion company such as Olde Towne is not part of the "chain of distribution" of the type of watercraft at issue merely because it uses such equipment to provide boating and snorkeling adventures to its clients. As reasoned in the Ferrari case, respondent's purchase and use of the watercraft did not suddenly transform it into a manufacturer or retailer of the vessel. In order for plaintiff to recover against defendant under a product liability theory, she must show that defendant was in the business of selling watercraft or their component parts. Fisher has been unable to make such a showing and therefore she cannot state a product liability claim against Olde Towne. The unsupported allegations in the complaint that Olde Towne designed and manufactured the dinghy are insufficient to raise a triable issue of material fact. (Certain Underwriters at Lloyd's of London v. Superior Court (1997) 56 Cal.App.4th 952, 956.) Olde Towne did not design, manufacture, or distribute the dinghy or any of its component parts and therefore, as a matter of law, it cannot be held liable under any product liability theory.
The judgment is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
James W. Brown, Judge
Superior Court County of Santa Barbara
Richard E. Damon, PC, and Richard E. Damon for Appellant.
Kaye, Rose & Partners, LLP, Frank C. Brucculeri and Michelle E. Ceja, for Respondent.