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Skateboarder’s Claim Against Water District and Owner of Road Barred By Doctrine of Primary Assumption of Risk

Bertsch v. Mammoth Community Water District 2016 WL 3201383

June 1, 2016

In this case, Plaintiffs Richard Bertsch and Mitchell Bertsch (“Plaintiffs”) appealed from the trial court’s granting of summary judgment in favor of defendants Mammoth Community Water District and Sierra Star Community Association as to plaintiffs’ causes of action for wrongful death, negligence, premises liability and negligent infliction of emotional distress.  In this matter, Brett Bertsch suffered fatal injuries when he fell off his skateboard when its wheels came into contact with a small gap between the road and a cement collar surrounding a manhole cover.  Defendant Mammoth Community Water District was the entity responsible for inspecting and maintaining the manhole cover, and Sierra Star Community Association was the owner of the road where the accident occurred.  The trial court concluded the doctrine of primary assumption of risk barred plaintiffs’ lawsuit as a matter of law.

As background, in September 2011, on the morning of the accident, Brett and his brother Mitchell were “cruising” around the neighborhood on their skateboards “for fun.” After stopping at their condominium to get some water, the two set out again on their skateboards. From the condominium, they traveled down Sierra Star Parkway, made a left turn onto West Bear Lake Road, and then “pushed [their] way up” an incline in the road so they could turn around and come down the hill. Their father planned to meet them at the intersection of Sierra Star and West Bear Lake.  He reached the intersection as Brett and Mitchell were coming down the hill. Mr. Bertsch estimated their speed to be “about eight to ten miles an hour.” Mitchell described their speed as “pretty fast.” Neither Brett nor Mitchell was wearing a helmet. As they reached the intersection, Brett was slightly ahead of Mitchell and was traveling on the wrong side of the street. The front wheels of Brett’s skateboard stopped abruptly when they hit a small gap between the paved road and a cement collar surrounding a manhole cover, ejecting Brett from the board. The right side of Brett’s head struck the pavement as he hit the ground, causing a traumatic brain injury and resulting in his death.

In their motions for summary judgment, defendants argued plaintiffs’ lawsuit was barred by the doctrine of primary assumption of risk. Specifically, defendants argued skateboarding is an activity that 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,” and because Brett assumed the risks inherent in skateboarding, including the risk of falling, defendants owed no duty to plaintiffs to protect Brett against that risk. Plaintiffs opposed the motions. With respect to primary assumption of risk, plaintiffs argued the 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.”

In discussing the applicable law, the Bertsch court explained “under the doctrine of primary assumption of risk, a defendant generally owes no duty to protect a participant in a sports or sport-like activity against risks that are inherent in that activity.” The court also stated “the defendant’s role in, or relationship to, the sport engaged in by the participant” is also relevant. “This is because certain relationships give rise to a duty to use due care not to increase the risks to a participant over and above those inherent in the sport . . . However, as our Supreme Court clarified in Parsons, where there is no such (or similar) relationship between a defendant and the participant relating to the activity, a defendant generally has no duty to avoid increasing the risks inherent in [the] activity.”

Applying the law to the facts of this case, the Bertsch court stated “[s]kateboarding 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 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.”  In this matter, while Brett was not performing a trick on his skateboard at the time of the accident, but was instead “cruising” down a hill, the court agreed with the trial court that such an activity is equally subject to the doctrine of primary assumption of risk. The Bertsch court stated “there can be no serious dispute that traveling downhill on a skateboard 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 . . . the most obvious risk of injury coming from the prospect of falling off the board . . . This inherent risk is precisely what materialized the morning of the accident and resulted in Brett’s tragic death.”

Finally, the Bertsch court rejected plaintiffs’ argument that defendants’ negligence in failing to properly maintain the street and manhole cover “increased the risks to Brett above and beyond those inherent in riding a skateboard.”  The Bertsch court held “the defendants owed no duty to use due care not to increase the risks of skateboarding because there was no organized relationship between either of these defendants and Brett in relation to this activity.” The court found neither defendant in this case “held out [the roadway or manhole cover] as an appropriate place to skateboard or in any other way represented that the [roadway or manhole cover] was a safe place for skateboarding.”

This decision provides a thoughtful analysis on the doctrine of primary assumption of risk, and the duties owed by public entities and property owners to individuals who are injured on their land while participating in sports or other sport-like activities.

ABOUT THE AUTHOR: Robert Taitz specializes in civil litigation in the areas of personal injury, professional liability, and general liability. Contact Robert at 415.464.4935 or rtaitz@tysonmendes.com.