Mark CARTER, Plaintiff and Appellant, v. HOLIDAY SKATING CENTER, Defendant and Respondent.
Plaintiff was injured while skating at defendant's roller rink. He sued, but the trial court granted summary judgment. Because plaintiff presented triable issues of material fact, and because plaintiff's claim is not barred by the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696), we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Plaintiff Mark Carter went to the premises of defendant Holiday Skating Center to roller skate. He alleges that although defendant knew or should have known that plaintiff was an inexperienced skater, defendant rented to him low cut “racing skates” inappropriate to his novice skill level. He alleges that as a result, his “ankle went out from under him and he was caused to fall and suffer three fractures to his ankle.”
Defendant moved for summary judgment on two grounds. Defendant first contended that it had not supplied plaintiff with “racing skates,” and that even if it had, “racing skates” do not increase the risk of falling. Defendant secondly contended that plaintiff's claim was barred by the doctrine of primary assumption of the risk under Knight, supra.
Defendant's motion on the first point (that defendant had not provided “racing skates,” etc.) acknowledged that plaintiff had not skated in twenty years and was “a bit rusty.” The motion, however, was based on the proposition that defendant's burden on summary judgment is met if defendant can “point to the absence of evidence” to prove plaintiff's case. Defendant contended that plaintiff had no evidence that he had been given “racing skates” and no evidence that “racing skates” had caused him to fall.
Defendant's motion on the second point (primary assumption of the risk) was based on the proposition that falling is a risk inherent in roller skating. The motion noted that no California case had yet examined the doctrine of primary assumption of the risk in the context of roller skating, and argued that plaintiff had assumed the risk of falling.1 Defendant acknowledged that a defendant has a duty not to increase the risk inherent in a sport, and predicted that plaintiff would argue that defendant had increased plaintiff's risk by providing plaintiff with “the wrong skate.” Defendant contended, however, that defendant provided “the same rental skates to all its patrons,” and that in any event “racing style skates” do not increase the risk of falling.
In opposition, plaintiff presented evidence that plaintiff had been provided with skates having a boot cut below the large bone that protrudes on either side of the ankle. Plaintiff also presented the declaration of an expert who opined “that any skate cut below the ankle could be considered a racing style type of skate,” “that a low cut skate provides a skater with significantly less support for the skater's ankle,” and “that a beginning skater wearing a low cut type skate is significantly more likely to fall and injure him or herself than if he was wearing a standard mens' skate.”
The trial judge granted summary judgment and ordered defendant to prepare the order required by Code of Civil Procedure section 437c, subdivision (g) (upon granting summary judgment, court must specify reasons for determination and specifically refer to evidence.) The resulting order, which the judge signed, stated two bases for summary judgment. The first basis was that there was no triable issue of material fact regarding the type of roller skate defendant provided to plaintiff. The order stated that the “court finds Defendant provided Plaintiff a regular men's rental skate.” The order further stated that the court found the declaration of plaintiff's expert regarding the type of skate provided to be “speculative and unpersuasive.” Therefore, the order concluded, “no competent evidence rebuts Defendant's evidence that regular rental skates were provided.” The second stated basis for summary judgment was that the “court finds no evidence of negligence and no evidence that any purported negligence caused Plaintiff to fall. No competent evidence offered by Plaintiff establishes that the style of skated [sic] caused Plaintiff to fall, or even increase the risk of falls.”
Judgment was entered and plaintiff appealed.
a. Plaintiff raised triable issues of material fact regarding the type of skates provided, their suitability for a skater of plaintiff's skill level, and the causal connection between the skates and the fall.
Plaintiff's complaint unfortunately characterized the skates with which he had been provided as “racing skates.” Defendant adroitly exploited this wholly unnecessary characterization, and used it to frame the issue as one of whether plaintiff had been provided with “racing skates.” The trial court was deflected onto this analytical course and made a “finding” that plaintiff had really been provided with a “regular men's rental skate,” and therefore (inferentially) that he had not been provided with “racing skates.”
This episode illustrates the deflective power that can be generated by how an issue is framed, and the importance in a legal proceeding of focusing on fact and substance and not on label and characterization. Whether the skates in question can properly be characterized as “racing skates” is of no moment. The determinative issue is whether plaintiff was negligently provided with skates unsuitable to his skill level-whatever label one might use to characterize the skates actually provided-and whether unsuitable skates contributed to his fall.
Since this case reaches us after a grant of summary judgment, we review the moving and opposing papers to determine whether defendant established an entitlement to judgment as a matter of law. (See, e.g., Tan v. Goddard (1993) 13 Cal.App.4th 1528, 1530, 17 Cal.Rptr.2d 89.)
1. The “regular men's rental skate” issue.
The trial court's first “finding”-that plaintiff had been provided with a “regular men's rental skate”-cannot support summary judgment. Defendant presented no evidence contesting plaintiff's claim that he was provided with a skate cut below the protuberance of the large ankle bones. Defendant's presentation leaves unclear whether defendant intended to admit or to deny that it provided a skate cut below the ankle bones (defendant's showing leaves open the possibility that defendant's “regular men's rental skate” is cut below the ankle.) The trial court's finding that defendant provided a “regular men's rental skate” might therefore be either consistent with, or inconsistent with, plaintiff's evidence that the boot was cut below the ankle. This ambiguous “finding” therefore contributes little to resolution of the ultimate issue.
Even if the trial court's “finding” were interpreted as a determination that the skates provided by defendant were high-cut, extending above the protuberance of the ankle bones, such a factual determination would not support summary judgment because such a factual determination cannot be made on a summary judgment motion. Plaintiff testified that the skates were cut below the bone that protrudes on either side of the ankle. “[T]he function of the trial court on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Hence the trial court could not, on a summary judgment motion, make a “finding” that the skates provided were really high-cut skates.
2. The causation issue.
The trial court's second “finding”-that there was no competent evidence that the skates caused plaintiff to fall or increased the risk that plaintiff would fall-similarly cannot support summary judgment. Defendant attempted to support this proposition primarily with evidence that plaintiff himself does not know what caused him to fall. Defendant contended that “Plaintiff fell when his ankle folded under him, but does not know what caused him to fall.” Defendant supported this assertion by citation to plaintiff's deposition, in which plaintiff testified that his foot “just kind of slipped out from underneath me and I went down” and that he did not know what caused his foot to go out from underneath him. Defendant contends that plaintiff's lack of knowledge of the cause of his fall constitutes the type of “absence of evidence” which can support a defendant's motion for summary judgment. (Cf. Code of Civ. Proc., § 437c, subd. (o)(2) [defendant meets burden by showing that one or more elements of plaintiff's cause of action cannot be established]; see, e.g., Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653 [defendant may satisfy burden on summary judgment by showing absence of evidence on critical element of plaintiff's claim]; Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 739, 60 Cal.Rptr.2d 710 [moving party must show that there is no evidence to support a necessary element of opposing party's case].)
Defendant's argument was misdirected. To prove a defendant liable for negligence, a plaintiff need not prove that plaintiff personally has knowledge of the cause of injury. Although evidence of what a plaintiff personally observed is generally admissible in a negligence case, and hence is often presented, the plaintiff's personal knowledge is not itself an element of a negligence cause of action. It is quite common in medical, product liability, res ipsa loquitur, and many other situations for the injured party not to know what caused the injury. It is often precisely because an injured party does not know what caused the injury that expert testimony is needed. Hence defendant's showing that plaintiff does not know what caused him to fall is insufficient to support summary judgment in the face of the evidence of causation presented by plaintiff's expert. She opined that a skate cut below the ankle bone would provide the ankle with insufficient support for a novice skater, that it would increase the incidence of falls, and hence that it would be unsuitable for a novice skater. A trier of fact could reasonably infer from this evidence that at least a portion of the cause of plaintiff's fall was defendant's provision of improper skates. Since a trier of fact could reasonably infer the existence of at least some level of causation, the existence of causation cannot be ruled out on summary judgment.
Defendant argued that plaintiff's expert evidence was incompetent because the expert did not know what type of skate plaintiff was wearing-whether high cut or low cut. This argument has no merit. Plaintiff testified that he was wearing a skate cut below the “bone that protrudes on either side of the ankle,” and plaintiff's expert declared that a skate with a boot “cut below the ankle” was dangerous to a novice skater. This reflects the normal sequence for presentation of evidence of this type: a percipient witness presents evidence of facts, then an expert (who has no personal knowledge of the facts) opines on the assumption that the facts stated by the percipient witness are true. Defendant's argument that plaintiff's expert does not know what type of skates plaintiff was wearing does not establish that the opinion evidence of the expert was incompetent.
Defendant additionally argued that the declaration of plaintiff's expert failed to establish her expertise. The declaration stated that the expert has been “involved in the skating industry for 23 years,” that she was a competitive figure skater for 12 years, that she had taught roller skating for seven years, that she was a member of the Roller Skating Association, and that she was familiar with various types of skates because of her activity as a skating instructor. Generally a person is qualified to testify as an expert if she “has special knowledge, skill, experience, training, or education ․ on the subject to which [her] testimony relates.” (Evid.Code, § 720.) Although the expert's declaration could have elaborated on her qualifications in greater detail, it was sufficient to establish that she has special knowledge of the subject of roller skating.
The trial court's “finding” (that there was no competent evidence that the style of skate contributed to plaintiff's fall) was therefore inconsistent with the record and cannot support summary judgment.
b. Since defendant had a duty to provide proper equipment, the doctrine of primary assumption of the risk does not apply.
Defendant's motion for summary judgment also argued that plaintiff's claim was barred by the doctrine of primary assumption of the risk. The trial court did not rule on this basis, but since we review a summary judgment de novo (see, e.g., AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203), we consider the issue. Our conclusion is that plaintiff's claim as alleged is not barred by the doctrine of primary assumption of the risk.
In Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the Supreme Court distinguished two concepts. The first, commonly termed “primary assumption of the risk,” applies when the defendant owes no duty to protect the plaintiff from the particular risk which caused plaintiff's injury. (See also, e.g., Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751, 33 Cal.Rptr.2d 732 [“Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity.”].) In such instances of no duty, the defendant of course can have no liability. The second concept discussed by the Supreme Court in Knight, commonly termed “secondary assumption of the risk,” applies when the defendant does owe a duty to protect the plaintiff from a particular risk and has breached that duty, but the plaintiff has nevertheless chosen to encounter the risk. (Knight, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Such a case is a comparative negligence case containing all the normal elements: duty, breach, causation and damage. (See, e.g., Wattenbarger, supra, 28 Cal.App.4th 746, 33 Cal.Rptr.2d 732.) “When a risk of harm is created or imposed by a defendant's breach of duty, and a plaintiff who chose to encounter the risk is injured, comparative fault principles preclude automatically placing all of the loss on the plaintiff, because the injury in such a case may have been caused by the combined effect of the defendant's and the plaintiff's culpable conduct.” (Knight, supra, 3 Cal.4th at p. 310, 11 Cal.Rptr.2d 2, 834 P.2d 696.)
Although the Supreme Court was divided concerning the proper application of the doctrine of assumption of the risk, the lead opinion of Justice George commanded a majority (Knight, supra, 3 Cal.4th at p. 314, 11 Cal.Rptr.2d 2, 834 P.2d 696), and hence we must follow it. (See, e.g., Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 821 fn. 1, 20 Cal.Rptr.2d 270; Tan v. Goddard, supra, 13 Cal.App.4th 1528, 1534, 17 Cal.Rptr.2d 89; Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1397, 14 Cal.Rptr.2d 679.) The question in the instant case thus resolves into whether defendant had a duty not to negligently provide plaintiff with a type of skates unsuited to plaintiff's skill level, skates which increased his risk of falling and injury. If defendant had no such duty, there would be no possibility for liability, and summary judgment should be granted. By contrast, if defendant did have a duty not to supply plaintiff with skates inappropriate to his skill level, summary judgment is not available, because it is disputed whether defendant did or did not negligently supply plaintiff with skates that were inappropriate to his skill level.2
Knight holds that whether the defendant owes a legal duty to protect the plaintiff from a particular risk of harm depends on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport. (Knight, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Although a defendant has no duty to protect a plaintiff against risks inherent in an activity, “it is well established 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.” (Id. at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Thus a ski operator has no duty to remove moguls, but does have a duty to maintain its “towropes” in a safe condition. (Id. at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) No California case has considered how the doctrine of assumption of the risk applies to roller skating, but it is clear after Knight that a defendant has no duty to protect a plaintiff from falling while roller skating, since the risk of falling is inherent in roller skating. However, applying Knight and its progeny together with general negligence law, we hold that a roller rink does have a duty not to negligently supply a novice skater with skates unsuited to his skill level.
“In a given case, the question of whether a duty is owed, and the extent of that duty, depends on a number of factors, chief among which is the foreseeability of harm or ․ the foreseeability of an increase in the risk over that which is inherent. Other factors to be considered are the degree of certainty the plaintiff was injured, the connection between the defendant's conduct and the injury, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the burden on the defendant and the community in imposing a duty, and the availability of insurance. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653; Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 255-256, 38 Cal.Rptr.2d 65.) As is apparent from the nature of these factors, from the standards set by Knight as quoted above, and from the facts of this case, the relevant considerations weigh heavily in favor of the existence of a duty on the part of the operator of a commercial roller rink not to negligently supply novice skaters with skates inappropriate to their skill level. Numerous cases have considered similar issues of duty since the ruling in Knight, and among them several stand out as instructive here.
The defendant in Ferrari, supra, 32 Cal.App.4th 248, 38 Cal.Rptr.2d 65, was the commercial operator of a whitewater rafting trip. The court found that “[d]efendants' obligation not to increase the risks inherent in the activity included a duty to provide safe equipment for the trip, such as a safe and sound craft.” (Id. at p. 255, 38 Cal.Rptr.2d 65.) In Harrold, supra, 19 Cal.App.4th 578, 586-587, 23 Cal.Rptr.2d 671, the court found that the “general principle” stated in Knight is “that commercial operators of sports and recreational facilities owe a duty of care to their patrons. In general terms, that duty is to ensure the facilities and related services which are provided do not increase the risk of injury above the level inherent in the sport or recreational activity itself. A commercial operator violates this duty if, for instance, it sells or rents its patrons defective equipment which aggravates the patrons' risk of injury.” In Harrold, the plaintiff was thrown from a rearing horse at a resort ranch. The court found that “[t]he commercial operator has a duty to supply horses which are not unduly dangerous. Furthermore, the operator owes the duty to warn the patrons renting a given horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding.” (Id. at page 587, 23 Cal.Rptr.2d 671.) In Tan v. Goddard, supra, 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89, a student jockey was assigned a lame horse to ride on an unsafe track. The horse fell, and the student was injured. The Court of Appeal held that the jockey instructor had a duty “of ordinary care to see to it that the horse he assigned [to the injured student] to ride was safe to ride under the conditions he prescribed for that activity. His failure to do so is analogous to the example, cited in Knight, of the duty of the ski resort operator to use due care to maintain its towropes in a safe condition.” (Id. at page 1536, 17 Cal.Rptr.2d 89.) In Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 19 Cal.Rptr.2d 24, a construction worker was injured when the bit on his electric drill locked, and he was thrown off a ladder by the rotational force of the drill. The court ruled that the manufacturer was not entitled to summary judgment on grounds of primary assumption of the risk, because the manufacturer had not established an absence of duty to provide a safe drill. In Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 21 Cal.Rptr.2d 178, plaintiff slipped and fell while dancing on a floor on which a substance had been scattered to make the floor more slippery. The court found that the defendant was potentially liable, and that the doctrine of primary assumption of the risk did not apply, because the defendant had a duty not to increase the inherent risks of dancing by providing a dangerously slippery dance floor. In Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270, a student was injured when an instructor set up horse jumps which were allegedly beyond the capabilities of the student and the horse. The student was injured as a consequence. The court ruled that “defendants certainly had a duty to avoid an unreasonable risk of injury to plaintiff and to take care that the jumping array was not beyond the capability of horse and rider. Of course, the risk of injury, inherent in plaintiff's activity, cannot be eliminated and in fact creates the challenge which defines the sport. The complaint and evidence presented in the trial court created a question of fact concerning whether defendants, who, we may infer, had knowledge and experience concerning the sport of horse jumping superior to that of plaintiff, negligently deployed the jumps at unsafe heights or intervals and thereby breached the duty owed to plaintiff.” (Id. at p. 823, 20 Cal.Rptr.2d 270; see also Wattenbarger, supra, 28 Cal.App.4th at p. 755, 33 Cal.Rptr.2d 732 [operator of baseball tryout has duty not to supply faulty batting helmets or catching gear].)
These cases collectively support the conclusion that a commercial operator of a sports facility or activity has a general duty of care not to negligently provide a customer with equipment which is unsuited to that customer's skill level, and which increases the risk that the customer will be injured. There is nothing extraordinary about this duty; it is analogous to the standard duty of care which applies in numerous situations. In the specific instance of roller skating, a roller rink operator can presumably satisfy this duty simply by providing the “basic rental skate” which defendant claims to have provided in this instance. The duty might also be satisfied if appropriate warnings are given, even though a daredevil customer might nevertheless choose to test himself with more advanced equipment. In the instant case, however, there is no evidence of appropriate warning and there is evidence that defendant provided unsuitable skates.
Many of the cases cited above speak in terms of defective equipment, and defendant argues that there was no evidence presented that the skates rented to plaintiff were defective. This is true in one sense, but false in another. It is true that there was no evidence that the skates were mechanically defective, but-as noted above-there was evidence that the skates were unsuited to the novice skill level of the plaintiff. Thus there was evidence that defendant breached its duty to provide skates appropriate to plaintiff's skill level, and summary judgment therefore should not have been granted.
The judgment is reversed. Plaintiff (appellant) to recover costs on appeal.
1. Primary assumption of the risk was found to bar recovery for a mere fall while roller skating in Wagner v. Thomas J. Obert Enterprises (Minnesota 1986) 396 N.W.2d 223. In Wagner there were two competing versions of how the fall occurred. One was that the adult plaintiff simply fell while trying to avoid children. The other was that plaintiff fell due to a defective threshhold on the exit from the skating area. The court ruled that the defendant could be liable for injury caused by a defective threshhold, but that primary assumption of the risk would bar recovery for a mere fall. (See also, e.g., Smollett v. Skayting Development Corp. (3rd. Cir.1986) 793 F.2d 547 [rollerskater assumed risk of falling while trying to avoid another fallen skater]; Schamel v. St. Louis Arena Corporation (Missouri App.1959) 324 S.W.2d 375 [rollerskater assumed risk of falling, but not risk of being knocked down by unruly skater whom management failed to control].)
2. If defendant proves at trial that plaintiff was supplied with skates that were cut above the ankle, or that skates cut below the ankle are not dangerous to inexperienced skaters, or that despite warning plaintiff requested the skates supplied to him, etc., and hence proves that defendant breached no duty to plaintiff, then plaintiff will not be entitled to a recovery merely because plaintiff fell. Falling is an inherent risk of roller skating. Whether explained in the language of lack of duty to prevent falls or in the language of “primary assumption of the risk,” defendant will be entitled to judgment if all that happened was that plaintiff fell. However, on this appeal we deal only with whether this case was properly disposed of by summary judgment. As explained in the text, that depends on whether or not defendant has a duty to provide appropriate skates. (See, e.g., Domenghini v. Evans (1998) 61 Cal.App.4th 118, 70 Cal.Rptr.2d 917 [issue of whether defendant had a duty to protect plaintiff from injury in cattle roundup is an issue of law]; Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 23 Cal.Rptr.2d 671 [issue is whether defendant owed a duty].)
ZEBROWSKI, Associate Justice.
BOREN, P.J., and FUKUTO, J., concur.