WICKER v. OOSTEN

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Court of Appeal, Fourth District, Division 2, California.

Christine WICKER, a Minor, etc., Plaintiff and Appellant, v. Gerald OOSTEN, Defendant and Respondent.

No. E013086.

Decided: July 31, 1995

 Waters & Elwell and Douglas M. Elwell, Riverside, for plaintiff and appellant. Hagenbaugh & Murphy and Katharine L. Spaniac, San Bernardino, for defendant and respondent.

OPINION

Plaintiff, Christine Wicker, by and through her petitioning guardian ad litem (“Wicker”), appeals after summary judgment was granted in favor of defendant Gerald Oosten (“Oosten”) in Wicker's action for negligence arising from injuries allegedly sustained on a waterskiing trip.

FACTS

In early October 1989, Wicker accepted the invitation of her friend, Christy Oosten, to accompany the Oosten family on a weekend waterskiing trip to Lake Havasu.   On the last day that they were at Lake Havasu, Wicker fell on her final waterskiing run.   Oosten was driving the boat.   Wicker claims to have injured her head and jaw as a result of the fall.   However, she could  not remember exactly how she fell or what caused her to fall.   Although Oosten drove the boat, Wicker was aware that he was neither a coach nor a trainer of the sport of waterskiing.   Wicker was 13 years old at the time of the fall.

Prior to the Lake Havasu trip, Wicker had accompanied another friend and her family on a waterskiing trip to Bass Lake.   During that trip, Wicker, as well as other skiers, sustained falls in the course of skiing.   At Bass Lake Wicker graduated from using two water skis to using one water ski.   She made the change because she could do more on one ski and it was more fun.   For example, she stated that on one ski it is easier to maneuver in and out of the wake.

On October 10, 1991, Wicker filed a negligence action against Oosten, who asserted that he was not legally responsible for her damages.   After taking Wicker's deposition, Oosten moved for summary judgment based upon the Supreme Court's holding in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724.   The trial court granted the motion and judgment for Oosten was entered on May 20, 1993.

By way of this appeal, we are asked to review the trial court's granting of Oosten's motion for summary judgment.

STANDARD OF REVIEW

“Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  On review, we strictly construe the moving party's papers and liberally construe those of the opposing party to determine if they raise a triable issue of material fact.  [Citation.]”  (Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1204–1205, 14 Cal.Rptr.2d 670.)

DID THE TRIAL COURT PROPERLY APPLY THE HOLDINGS IN KNIGHT AND FORD TO FACTS OF THIS CASE?

In granting Oosten's motion for summary judgment, the trial court found that “there are no triable issues of material fact concerning whether or not [Oosten] owed [Wicker] a duty of ordinary care.  [Thus, Oosten] is entitled to judgment as a matter of law under the holdings of Knight/Ford.   The fact that [Wicker] was a minor does not take the case out of the Knight/Ford parameters.”   On appeal, Wicker challenges the trial court's employment of the Knight/Ford “sports co-participant assumption of the risk” doctrine as  the only applicable “duty of care” doctrine under the facts of this case.   Before we address Wicker's challenges, we find it necessary to review the applicable case law cited by the parties.

A. Case Law.

In Knight, plaintiff initiated an action for negligence and assault and battery as a result of injuries she sustained during an informal touch football game.   Summary judgment was granted in favor of defendant and the Court of Appeal affirmed the decision based upon the holding in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536.1  Because the Ordway decision conflicted with another appellate court decision, namely Segoviano v. Housing Authority of Stanislaus County (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578,2 the Supreme Court granted review to resolve the conflict as to the proper application of the assumption of risk doctrine in light of the adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.

Finding that the appellate court decisions were misinterpreting Li by suggesting that the decision contemplated a less favorable legal treatment for a plaintiff who reasonably encounters a known risk than for a plaintiff who unreasonably encounters such a risk, the Supreme Court stated that “the distinction in assumption of risk cases to which the Li court referred ․ was not a distinction between instances in which a plaintiff unreasonably encounters a known risk imposed by a defendant's negligence and instances in which a plaintiff reasonably encounters such a risk.   Rather, the distinction to which the Li court referred was between (1) those instances  in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk—the category of assumption of risk that the legal commentators generally refer to as ‘primary assumption of risk’—and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty—what most commentators have termed ‘secondary assumption of risk.’ ”  (Knight v. Jewett, supra, 3 Cal.4th 296, 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In affirming the continued viability of “primary assumption of risk” doctrine, Knight held that “the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather 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 v. Jewett, supra, 3 Cal.4th 296, 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Thus, when faced with participants in an active sport, the Supreme Court concluded that a participant breaches a legal duty of care to other participants “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.”  (Id., at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In Ford, a water-skier filed a negligence action against the driver of a ski boat for injuries sustained when the water-skier hit a tree branch overhanging a narrow channel in a river delta, through which he was waterskiing barefoot and backwards.   Summary judgment was granted in favor of defendant and the Supreme Court affirmed.  (Ford v. Gouin, supra, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

Referring to Knight, the Supreme Court stated that “the decisions that have recognized the existence of only a limited duty of care in a sports situation generally have reasoned that vigorous participation in the sport likely would be chilled, and, as a result, the nature of the sport likely would be altered, in the event legal liability were to be imposed on a sports participant for ordinary careless conduct.  [Citation.]   This reasoning applies to waterskiing․   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.   Under the principles set forth in Knight, summary judgment in favor of defendant was properly entered.” 3  (Ford v. Gouin, supra, 3 Cal.4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

With an understanding of the Supreme Court's application of the assumption of risk doctrine in light of the adoption of comparative fault principles,  we examine how subsequent appellate decisions have treated the Knight/Ford reasoning.   A First District court affirmed a summary judgment in favor of the owner and captain of a sail boat and against the plaintiff crewman who was injured when hit by the mainsheet after the owner/captain failed to give a verbal warning of a course change.  (Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 14 Cal.Rptr.2d 670.) Referring to the Knight opinion, the court stated that “[g]enerally, defendants have no duty to protect plaintiffs against risks inherent in an active sport.”   (Stimson, supra, at p. 1205, 14 Cal.Rptr.2d 670.)   The court found that a swinging boom is a risk inherent in the sport of sailing.   And, a failure to call out a course change does not amount to intentional or reckless conduct.

In the Second District, our colleagues in Division Four distinguished the absence of duty to coparticipants in a sport from that of coaches and instructors to persons in their charge.  (Tan v. Goddard (1993) 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89.)   In Tan, a student at a jockey riding school filed a negligence action against the trainer and the owner of the school for injuries sustained when a horse he was riding fell down.   The trial court granted summary judgment for defendant on the basis of implied reasonable assumption of the risk.   The appellate court reversed.

In refusing to apply the Knight/Ford reasoning, the Tan court stated that “[o]ur case is different.   Here, we do not deal with the relationship between coparticipants in a sport, or with the duty that an operator may or may not owe to a spectator.   Instead, we deal with the duty of a coach or trainer to a student who has entrusted himself to the former's tutelage.   There are precedents reaching back for most of this century that find an absence of duty to coparticipants and, often, to spectators, but the law is otherwise as applied to coaches and instructors.   For them, the general rule is that coaches and instructors owe a duty of due care to persons in their charge.  [Citations.]”  (Tan v. Goddard, supra, 13 Cal.App.4th 1528, 1534–1535, 17 Cal.Rptr.2d 89.)   Thus, finding that the plaintiff had placed himself in the hands of the jockey school's riding trainer, the court concluded that the trainer owed a duty of ordinary care to see to it that the horse assigned to plaintiff was safe to ride under conditions he prescribed for that activity.

 Similarly, Division Two of the same district reversed a summary judgment in favor of defendants and against the plaintiff who had sustained injuries when she fell from a horse while training for a horse show.   (Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270.)   The Galardi court applied the “analytical framework established by the Supreme Court [in Knight and looked] both to the nature of the sport and to the roles and relationship of the parties.”  (Id., at p. 822, 20 Cal.Rptr.2d 270.)   Although the court found that the sport of horse jumping is inherently risky, it found the Tan decision to be directly on point regarding the roles and relationship of the parties.   Like Tan, Galardi had placed her training in the hands of defendants, who were employed to instruct and coach her.   As such, defendants had a duty to avoid an unreasonable risk of injury to Galardi.   Having determined that defendants had such duty of care, the court found that the case fell into the category of secondary assumption of risk.  (Id., at p. 823, 20 Cal.Rptr.2d 270.)

B. Wicker's Argument.

Wicker does not challenge the trial court's reasoning or analysis in its application of the Knight and Ford holdings to the facts of this case.   Instead, she questions the trial court's “implicit (and erroneous) assumptions that:  (1) The Knight/Ford ‘sports co-participant assumption of the risk’ doctrine was applicable in this case;  and (2) that that doctrine defined the only applicable duty of care which [Oosten] owed to [Wicker] during the incident in question.”

 In claiming that the “sports co-participant assumption of the risk” doctrine does not apply in this case, Wicker argues that it is the roles and relationship aspect, as defined by the Knight and Ford holdings, which is amiss.   Specifically, she contends that the use of the word “coparticipant” by the Supreme Court connotates the existence of participating adult “equals”;  however, here, Wicker and Oosten were never “equals.”   Instead, she claims that Oosten was the “supervising adult” and she was the young teenager who had been entrusted to his care and supervision.   In support of her argument, she refers to the decisions in Tan and Galardi.   We reject this “entrustment relationship” argument for the following reasons.

First, we must not forget our Supreme Court's words in Knight, “the nature of a defendant's duty in the sports context depends heavily on the nature of the sport itself.   Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant's role in, or relationship to, the sport.”  (Knight v. Jewett, supra, 3 Cal.4th 296, 317, 11 Cal.Rptr.2d 2, 834 P.2d 696, emphasis added.)   Thus, we must initially look to the nature of the sport.   In this case, the sport was noncompetitive waterskiing, i.e., a cooperative sport.   As  the Ford decision recognized, when a person engages in waterskiing, he or she 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.”  (Ford v. Gouin, supra, 3 Cal.4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)   Regardless of age, each participant has undertaken a “vigorous” activity.

Next, the record reveals that Wicker was invited by Oosten's daughter to attend a family waterskiing trip to Lake Havasu.   There was no requirement that she go waterskiing, nor was there any evidence that Oosten had assumed any role of instructor, trainer, or coach in her waterskiing runs.   Thus, this case is factually different from the facts used to find an “entrustment relationship” in both Tan and Galardi.

Thirdly, to boldly assume that by virtue of the fact that Oosten was an adult and Wicker was a teenager, there was an “entrustment relationship” takes the Knight/Ford holdings out of the context in which they were meant to apply.   Wicker incorrectly assumes that by simply relying on the physical differences between herself and Oosten, she can not be labeled a “coparticipant.”   However, in Knight, the plaintiff, a female, was injured by defendant, a male, during a game of touch football.   Despite the physical differences, the Supreme Court considered each of them to be coparticipants.   Likewise, we fail to see why a difference in age should matter.   Water-skiers come in all shapes, sizes, and especially, ages.

Finally, we find that the use of the word coparticipant is not confined to situations in which the participants are truly adult “equals.”   In the context of this case, the waterskiing was purely a recreational sport undertaken by a family and friends.   Most recreational sports are engaged in by participants of varying ages, i.e., the softball game at the company picnic.   Indeed, skill levels between adult participants vary widely sometimes based in part on age.4

As the Stimson court stated, “[p]articularly in the area of athletics and recreation, the doctrine of primary assumption of risk prevents lawsuits among participants who are knowingly engaged in the normal activities, and inherent risks, of an active sport.   By eliminating liability for unintended accidents, the doctrine ensures that the fervor of athletic competition will not be chilled by the constant threat of litigation from every misstep, sharp turn and sudden stop.  [Citation.]   On a larger scale, participation in amateur athletics is a socially desirable activity that improves the mental and physical  well-being of its participants.   The freedom to enjoy such activity is preserved through application of the doctrine of primary assumption of the risk.”  (Stimson v. Carlson, supra, 11 Cal.App.4th 1201, 1206, 14 Cal.Rptr.2d 670.)   Accordingly, we reject Wicker's attempt to carve an “entrustment relationship” exception to the coparticipant “no duty” holdings of Knight and Ford.

 Thus, we turn to Wicker's second claim that a separate and distinct “adult-to-child duty of care” applies to this case.   Wicker argues that the “entrustment relationship” between Oosten and herself embraced another specific duty of care which is well established and recognized in the law, i.e., that of an adult to a child.   She cites the words of our Supreme Court in Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 240, 60 Cal.Rptr. 510, 430 P.2d 68, “[I]n dealing with a young child defendants must exercise greater caution than in dealing with an adult.”   Again, we reject Wicker's argument.

As we stated above, waterskiing in general is an inherently risky sport.   Regardless of the age of the skier, there are certain risks associated with waterskiing which cannot be avoided despite the degree of caution used by the driver of the ski boat or the age of the skier.   In the context of this case, where a teenager was invited to accompany a family on a waterskiing vacation, the chances are highly likely that the only drivers of the ski boat would be the adult parents.   To impose a duty beyond that required under Knight and Ford on the adult ski boat driver when dealing with teenage skiers, does nothing to promote the public policy espoused in Ford.

Nonetheless the dissent would find that Oosten “owed a duty of care toward [Wicker] arising out of [her] age and the responsibility undertaken by [Oosten] when he included [Wicker] in his family's trip.”   In support of such finding, it cites to the following cases:  Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872;  Schwartz v. Helms Bakery Limited, supra, 67 Cal.2d 232, 240, 60 Cal.Rptr. 510, 430 P.2d 68;  and Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 33 Cal.Rptr.2d 732.

In Mitchell, defendants invited plaintiffs' 12–year–old son to accompany them on a picnic to Lake Gregory.   Plaintiffs testified that they had informed defendants that the 12–year–old could not swim.   Nonetheless, while at the lake defendants allowed the children, including the 12–year–old, to rent paddleboards and go out on the lake.   One of the paddleboards tipped and the 12–year–old drowned.   The Supreme Court found that the defendants had a duty to supervise the 12–year–old.

In Schwartz, plaintiff, age four, was struck by a car as he crossed a street to buy a doughnut from defendant, the driver of a retail truck owned by  defendant Helms Bakery Limited.   The Supreme Court held “that by undertaking to direct the child to an assigned rendezvous with the truck the defendants assumed a duty to exercise due care for his safety.”  (Schwartz v. Helms Bakery Limited, supra, 67 Cal.2d 232, 235, 60 Cal.Rptr. 510, 430 P.2d 68.)

In Wattenbarger, plaintiff, a 17–year–old baseball player, injured his arm while trying out as a pitcher for a major league team.   Plaintiff's complaint alleged that defendants negligently permitted him to throw another pitch after he had informed them that his arm had “popped.”   The lower court granted defendants' motion for summary judgment and the Court of Appeal reversed.   The appellate court found that although plaintiff's arm injury is a risk inherent in the sport of baseball, “[i]t is reasonable to infer that when plaintiff ․ informed the [team's] personnel his arm had ‘popped,’ he was seeking guidance as to how to proceed․  [¶] [D]efendants were not coparticipants in the [tryout,] but were instead in control of it[,] ․ and [they] took it upon themselves to restrict the participation of players with injuries.”   (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th 746, 753–755, 33 Cal.Rptr.2d 732, fn. omitted.)

Having reviewed the above cases relied upon by the dissent, we are not persuaded to change our position for the following reasons.   First, we find the facts of each case are distinguishable from the facts of the instant case.   Unlike the defendants in Wattenbarger, Oosten was not “in control” of the waterskiing activity.   Although he was driving the boat, he had not assumed any role, i.e., instructor, trainer, or coach, beyond that of a coparticipant.   In Schwartz, defendants undertook to direct the child to an assigned rendezvous with the truck.   Here, there is no evidence that Oosten directed Wicker on the course of her waterskiing.   And, in Mitchell, there was evidence to support a finding that defendants were aware that the 12–year–old could not swim, but allowed him to go out on the lake without proper supervision.   Here, the evidence supports a finding that Wicker had waterskied before and had reached the level at which she only had to use one ski to get up.

Second, neither Schwartz nor Mitchell involve situations wherein the plaintiff voluntarily participated in a sporting event or activity involving certain inherent risks.   Here, Wicker voluntarily participated in the sport of waterskiing.   As for the Wattenbarger opinion, as the dissent notes, the court rejected plaintiff's argument that defendants, as adults, owed a special duty to plaintiff who was a minor.

And finally, none of the three cases relied upon by the dissent involve the situation wherein the parties to the action are of differing ages and are engaged as coparticipants in an active recreational sport.   As we previously  recognized, “participation in amateur athletics is a socially desirable activity that improves the mental and physical well-being of its participants.   The freedom to enjoy such activity is preserved through application of the doctrine of primary assumption of the risk.”  (Stimson v. Carlson, supra, 11 Cal.App.4th 1201, 1206, 14 Cal.Rptr.2d 670.)

Moreover, the “duty of care” doctrine announced in Knight and Ford is broad enough to address those situations wherein a child is a coparticipant in a sport.   Accordingly, we decline to extend the duty of a coparticipant in an active sport outside the parameters established by the Knight and Ford decisions, i.e., if the participant intentionally injures another participant or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.5  Here, there is no evidence of intentional or reckless behavior on the part of Oosten.   Nor does Wicker contend that there was such behavior.   Thus, having found that the trial court correctly concluded that Oosten was entitled to summary judgment as a matter of law because there are no triable issues of material fact concerning whether or not Oosten owed Wicker a duty of ordinary care, we need not address the other issues raised in the briefs.

By stipulation of the parties, we have been informed that this matter has been settled and that the parties request a dismissal be filed.  “As required (Neary v. Regents of University of California (1992) 3 Cal.4th 273 [10 Cal.Rptr.2d 859, 834 P.2d 119] ․, we comply with the parties' request.”  (Lara v. Cadag (1993) 13 Cal.App.4th 1061, 1065–1066, 16 Cal.Rptr.2d 811.)   However, California Rules of Court, rule 976(b)(3) provides that an opinion of this Court may be published if it “involves a legal issue of continuing public interest.”   Because we find that this case involves such an issue, we have chosen to publish this opinion.

The dissent disagrees with our choice contending that the issue does not rise to the level warranting treatment as an issue of “substantial and continuing public interest.”   We respectfully beg to differ.   This action was initiated because Wicker was injured while accompanying her friend's family on a weekend waterskiing trip to Lake Havasu.   Because our state is known for its recreational opportunities and because many families invite friends of all ages to accompany them on outings, we find that the issue presented in this case is not only of great public interest, but it is also likely to recur.   Accordingly, we find this case ripe for publication.

 DISPOSITION

The appeal is dismissed.

I respectfully dissent from the decision to issue a published opinion in this case.   Given the fact that the majority has chosen to issue an opinion, I also dissent from the decision to affirm the grant of defendant's motion for summary judgment.

I. Stipulation of Dismissal

Following oral argument in this case, but before the opinion was filed, this court received a stipulation of the parties to dismiss the case pursuant to a settlement agreement.   Attached to the stipulation was a proposed order to be signed by this court dismissing the appeal.   Included in the stipulation was citation to legal authority, which has been relied on by the majority, providing precedent for this court to issue a published opinion in this case notwithstanding the fact that the issue raised in the appeal is now moot.

In Neary v. Regents of University of California (1992) 3 Cal.4th 273, 10 Cal.Rptr.2d 859, 834 P.2d 119 (Neary ), the California Supreme Court directed the Court of Appeal to issue an order granting the request of the parties for a stipulated reversal of the trial court judgment and dismissing the appeal.   In summarizing its ruling the Supreme Court stated:  “We hold that, when the parties to an action agree to settle their dispute and as part of their settlement stipulate to a reversal of the trial court judgment, the Court of Appeal should grant their request for the stipulated reversal absent a showing of extraordinary circumstances that warrant an exception to this general rule.”  (Id., at p. 284, 10 Cal.Rptr.2d 859, 834 P.2d 119.)

Six months after Neary was decided an appellate court was presented with a question concerning the adequacy of the evidence of defendant's financial condition to support an award of punitive damages.  (Lara v. Cadag (1993) 13 Cal.App.4th 1061, 16 Cal.Rptr.2d 811.)   The court concluded that the award of punitive damages had to be reversed.  (Id., at p. 1065, 16 Cal.Rptr.2d 811.)

The court went on to state that on the day of oral argument counsel had appeared to tell the court that the case had been settled, and a notice of dismissal had subsequently been filed.  (Lara v. Cadag, supra, 13 Cal.App.4th at p. 1065, 16 Cal.Rptr.2d 811.)   Without further discussion the appellate court stated:  “As required (Neary v. Regents of University of California (1992) 3  Cal.4th 273 [10 Cal.Rptr.2d 859, 834 P.2d 119] ․), we comply with the parties' request.”  (13 Cal.App.4th at pp. 1065–1066, 16 Cal.Rptr.2d 811.)   The court dismissed the appeal, but nevertheless published the opinion.

Relying on Lara v. Cadag, supra, the majority in the present case has done the same.   In my view, Lara does not adequately address the question of whether to issue an opinion once the appeal has been dismissed, and I believe that further examination leads to a decision not to issue or publish an opinion in the present case.

In Neary the appellate court was directed to issue an order granting the request of the parties for a stipulated reversal of the trial court judgment and dismissing the appeal.   In Lara v. Cadag, by contrast, the parties apparently settled and dismissed the case without seeking to affect the trial court judgment.   Thus, unlike Neary, the parties in Lara had no interest in the ruling of the appellate court, and the appellate court in Lara was not obligated to arrive at a particular result.   Unlike the court in Neary, the appellate court in Lara was free to address the merits of the underlying issue.   The question not discussed in Lara, however, was whether the court should have addressed the merits and issued an opinion in a case which had become moot.1

Neary does not support the decision in Lara to issue and publish an opinion following the dismissal.   In fact, by its statement that “The well-established rule is that we should avoid advisory opinions” (3 Cal.4th at p. 284, 10 Cal.Rptr.2d 859, 834 P.2d 119), Neary arguably undermines the result in Lara.   The very least one can say is that Neary does not address the matter.   Thus, the question of whether to issue and publish an opinion in the present case should be decided on more traditional grounds.

The California Supreme Court has stated that “ ‘the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of  law which cannot affect the matter in issue in the case before it.’ ”   (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863, 167 P.2d 725, quoting Mills v. Green [1895] 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293.)  “[I]t has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.”   (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10, 244 Cal.Rptr. 581.)

An exception to this rule has been recognized, however, to permit “resolution of important issues of substantial and continuing public interest which otherwise may have been rendered moot and of no further immediate concern to the initiating parties.”  (DeRonde v. Regents of University of California (1981) 28 Cal.3d 875, 880, 172 Cal.Rptr. 677, 625 P.2d 220.)   Thus, in DeRonde the court issued an opinion in a challenge brought by a white male to the “race attentive” law school admissions programs of defendant despite the fact that by the time the case was before the Supreme Court plaintiff had graduated from another law school and had been admitted to the bar.   In another case, the California Supreme Court concluded that “What process is due a student facing expulsion from a public school is a matter of continuing importance to children in the public school system, school boards, and school administrators,” and proceeded to consider the issue following the plaintiff's readmission to school which rendered the appeal moot.  (John A. v. San Bernardino City Unified School Dist. (1982) 33 Cal.3d 301, 307, 187 Cal.Rptr. 472, 654 P.2d 242.) 2

Evaluating the present case I would hold that although the issues now before us are important, they are lacking the element of “substantial and continuing public interest” which justified publication of advisory opinions in the cited cases.   The question of whether a minor is, as a matter of law,  deemed to be a “coparticipant” as that term is used in Knight3 and Ford4 is important and undoubtedly will recur.   However, the factual circumstances in which negligence cases originate are frequently critical to their resolution;  in my view it would be preferable to resolve this issue in the context of an actual dispute in which the court could grant effective relief.   In contrast to cases involving interpretation of a statute, or cases which will become moot before they can be brought before the courts, there is not a compelling reason in the present case for this court to proceed.   I would prefer to see this issue resolved with the active participation of parties who have a stake in the outcome of the litigation—and who might be prepared to pursue the issue to the California Supreme Court—rather than in an advisory opinion which has no binding legal effect on the parties.   I see no reason for this court to issue an opinion in the present case.

II. Motion for Summary Judgment

The trial court here held that “The fact that the plaintiff was a minor does not take the case out of the Knight/Ford parameters.”   The majority opinion affirms that holding.

In my view, an adult who has accepted responsibility for the supervision of a 13–year–old minor is not a “coparticipant” in a sport with that minor within the meaning of Knight and Ford.   I would hold that defendant here owed a duty of care to plaintiff, and I would reverse the summary judgment to allow a jury to determine whether that duty was breached.

In the several years since Knight and Ford were decided a number of appellate courts have been presented with the argument that primary assumption of the risk relieved the defendant of a legal duty to the plaintiff.   In a substantial proportion of those cases the courts have distinguished the facts of Knight and Ford and have imposed a duty notwithstanding the fact that the injuries complained of arose in the context of a consensual sport or activity.

Tan5 and Galardi,6 which are discussed in the majority opinion, distinguished Knight and Ford on the ground that coaches and trainers are not “coparticipants” in a sport with the students they have been employed to instruct.   Other decisions have held that the actions which contributed to the injury complained of were not properly considered to be part of the sport or  activity engaged in by the parties.  (See Freeman v. Hale (1994) 30 Cal.App.4th 1388, 36 Cal.Rptr.2d 418 [consumption of alcoholic beverages, while it often accompanies the sport of skiing, is not an integral part of the sport];  Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 33 Cal.Rptr.2d 777 [plaintiff was injured by a discus thrown by another student in plaintiff's discus-throwing class;  careless conduct of defendant in throwing the discus without first checking that the target area was clear was not an inherent risk of the sport].)

In a decision more closely analogous to our case, the court in Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 33 Cal.Rptr.2d 732, reversed a grant of summary judgment for defendants, who were scouts for a major-league baseball team.   The appellate court held that defendants were not relieved of their duty toward plaintiff, a 17–year–old pitcher, who had continued to pitch after he felt his shoulder “pop” and who had suffered permanent injury.   Plaintiff, who was participating in public tryouts for the team, had told defendants that his arm had popped;  “Receiving no response, plaintiff returned to the mound and threw another pitch,” at which time he experienced severe pain.  (Id., at p. 750, 33 Cal.Rptr.2d 732, fn. omitted.)

In Wattenbarger there was no formal instructor-student relationship as in Tan and Galardi, but the court nevertheless held that, as in those cases, “defendants were not coparticipants in the sport or activity but were instead in control of it,” and that they owed a duty of care to plaintiff.   (Id., at p. 754, 33 Cal.Rptr.2d 732, fn. omitted.)

In the present case I would hold that defendant owed a duty of care toward plaintiff arising out of plaintiff's age 7 and the responsibility undertaken by defendant when he included plaintiff in his family's trip.8  As plaintiff here has pointed out, such a duty was recognized in Schwartz v. Helms Bakery  Limited (1967) 67 Cal.2d 232, 240, 60 Cal.Rptr. 510, 430 P.2d 68, in which the California Supreme Court stated:  “California courts have held that in dealing with a young child defendants must exercise greater caution than in dealing with an adult.”   That duty is recognized also in BAJI No. 3.38.9

At oral argument and in briefing, counsel for defendant acknowledged that the issue would be different if plaintiff were a four-year-old child, but rejected plaintiff's claims that there were appreciable differences between the 13–year–old plaintiff and an adult.   The law frequently recognizes distinctions based on maturity—for example, that a 16–year–old can drive a car while a 14–year–old cannot—and we should not ignore the differences which justify those distinctions simply because they are difficult to articulate.   The majority opinion rejects the concept of an “entrustment relationship” which would alter the nature of the duty owed by defendant to plaintiff under Knight and Ford;  yet the discussion would undoubtedly be different if plaintiff here were a very small child with only the waterskiing experience of plaintiff.

The court in Knight stated that “the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm ․ [turns] ․ on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and plaintiff to that activity or sport.”  (Knight v. Jewett, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2.)

In the present case plaintiff was a minor who had limited experience in the sport in which she was allegedly injured.   As in Wattenbarger, supra, defendant was in a position of authority with respect to plaintiff.   A fragment of defendant's deposition which is included in the record on appeal appears to indicate that defendant had recognized that he had an obligation to teach his own daughters, who were approximately the age of plaintiff, the techniques  of waterskiing.10  The same transcript indicates that defendant had made no effort to find out about plaintiff's waterskiing ability before inviting her on the trip.

This court has recently stated that “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff's primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.  [Citation.]”  (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395, 36 Cal.Rptr.2d 418.)

I would hold that under the facts now before us defendant has failed to demonstrate that he owed no duty to plaintiff under the rule established in the Knight and Ford decisions.   I do not suggest that a minor could under no circumstances be deemed a coparticipant in a sport engaged in with an adult, but simply that defendant has not met his burden of establishing that the parties were coparticipants in the present case.

In Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, the Supreme Court approved the cases which have held that “it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport” (id., at p. 318, 11 Cal.Rptr.2d 2), and concluded that “a participant in an active sport breaches a legal duty of care to other participants ․ 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” (id., at p. 320, 11 Cal.Rptr.2d 2, fn. omitted).

In footnote 5 the majority in the present case suggests that such reckless behavior could include allowing a young child to participate in a sporting activity “despite his or her ability to effectively compete in the game because of age.”   I disagree in principle with creating a new test which, rather than placing the burden on the defendant to establish the defense, would shift to the minor the burden of showing that the defendant was reckless in allowing the minor to participate.

Even under that test, however, I believe that the summary judgment in the present case should be reversed.   Plaintiff here was 13 years old;  she had been waterskiing only seven or eight times in her life before the accident;  defendant apparently made no effort to establish plaintiff's level of  skill before taking her out on the water; 11  and, according to the declaration of plaintiff's expert, defendant failed to comply with the “safe custom and practice” of waterskiing by locating the “spotter” in the wrong place and by failing to slow down after plaintiff was up on the skis.   Given the evidence before the court, I would hold that the trial court erred when it held as a matter of law that defendant owed no duty to plaintiff.

Having determined that defendant was not relieved of duty under a primary assumption of the risk theory, I would apply a traditional analysis to the determination of whether defendant owed a duty to plaintiff in the present case.  “Other considerations relevant to the duty issue include ‘the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, 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 the availability, cost, and prevalence of insurance for the risk involved.  [Citations.]’  (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561] ․;  Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124–125 [211 Cal.Rptr. 356, 695 P.2d 653]․)”  (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th at p. 755, 33 Cal.Rptr.2d 732.)

Relying primarily on the policy of preventing future harm, I would find that there was a duty owed by defendant to plaintiff in the present case.   I therefore would reverse the summary judgment to permit a jury to consider the remaining issues.

FOOTNOTES

1.   In Ordway, a professional jockey was thrown from her horse and injured when another jockey, without looking, moved his horse in front of others, causing one of the others to fall in front of plaintiff's horse.   She filed a negligence action against the riders, trainers, and owners of the other horses.   The trial court denied summary judgment in favor of the owner of the offending horse and the Court of Appeal reversed holding that plaintiff's action was barred as a matter of law by the doctrine of reasonable implied assumption of risk (which survives comparative fault as a viable defense), since it was implied that plaintiff, as a professional jockey, assumed the risk of negligent conduct by other riders and the consequent risk of injury.  (Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 107, 243 Cal.Rptr. 536.)

2.   In Segoviano, plaintiff brought a negligence against the housing authority after he suffered injuries while playing in a flag football game.   The trial court refused to allow the defense counsel to comment on the doctrine of assumption of the risk, but instructed the jury on the defense of contributory negligence.   The jury found plaintiff to be 30 percent contributorily negligent.   The Court of Appeal reversed finding that it was error to instruct the jury on contributory negligence because it was conceded that plaintiff was not negligent in his conduct during the game, and because there was no evidence that plaintiff's decision to play the game was unreasonable.   Contrary, to the Ordway court's decision, the Segoviano court found that the doctrine of reasonable implied assumption of the risk may not be considered by a jury as part of the contributory negligence defense.

3.   In applying this reasoning to waterskiing, the Supreme Court observed, “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 driver's 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.”  (Ford v. Gouin, supra, 3 Cal.4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

4.   As this panel has become painfully aware, not only does age slow one's reflexes, it dissipates “the competitive edge.”

5.   We note that reckless behavior may include situations wherein a young child is allowed to engage in a sporting activity despite his or her inability to effectively compete in the game because of age.   However, such was not the case here.   Instead, despite Wicker's age, her skill at waterskiing surpassed that of many adults.

1.   An alternative disposition not considered in either Neary or Lara was that of Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 41 Cal.Rptr. 468, 396 P.2d 924, in which the California Supreme Court stated:  “Ordinarily, of course, when a case becomes moot pending an appellate decision ‘the court will not proceed to a formal judgment, but will dismiss the appeal.’  [Citations.] ․ Since the basis for [the trial court] judgment has now disappeared we should ‘dispose of the case, not merely of the appellate proceeding which brought it here.’  [Citations.]   That result can be achieved by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding.  [Citations.]   Such a reversal, of course, does not imply approval of a contrary judgment, but is merely a procedural step necessary to a proper disposition of this case.”  (Id., at pp. 134–135, 41 Cal.Rptr. 468, 396 P.2d 924, emphasis added.)

2.   Numerous other cases have been found to involve “resolution of important issues of substantial and continuing public interest.”   Some examples include County of Madera v. Gendron (1963) 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 382 P.2d 342 [court held that “The issue of whether the District Attorney of Madera County may engage in the private practice of law during his term of office is a question of general public interest.   Such questions do not become moot by reason of the fact that the ensuing judgment may no longer be binding upon a party to the action.  [Citations.] [¶] A determination of the instant question affects the defendant's successors in office as well as the district attorneys of other counties who serve under similar statutory disabilities.”];  Friends of Cuyamaca Valley v. Lake Cuyamaca Recreation & Park Dist. (1994) 28 Cal.App.4th 419, 425, 33 Cal.Rptr.2d 635 [court concluded that “Since this issue and the principles involved in interpretation of CEQA [California Environmental Quality Act] are of public importance and are likely to arise in the future, we deem it appropriate to discuss the questions involved,” despite the fact that the specific case before it was moot].

3.   Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2.

4.   Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724.

5.   Tan v. Goddard (1993) 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89.

6.   Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270.

7.   The court in Wattenbarger rejected plaintiff's argument that defendants, as adults, owed a special duty to plaintiff who was a minor.   (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th at p. 751, 33 Cal.Rptr.2d 732, fn. 3.)   The court concluded that “At any rate, the relative age of the parties merely goes to whether a general duty should be recognized in connection with this incident.   This issue is subsumed within the general negligence claim.”  (Ibid.)

8.   In another context the Supreme Court has acknowledged that an adult has a duty to supervise a minor child who accompanies the adult's family on a family outing.  (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872.)   In Mitchell, a 12–year–old boy drowned while on a day trip with defendants;  defendants were the 14–year–old friend of decedent and the parents of the 14–year–old.  “By special verdict, the jury found that defendants were negligent, i.e., they had breached a duty, but that the negligence was not a proximate cause of the death.”  (Id., at p. 1044, 1 Cal.Rptr.2d 913, 819 P.2d 872.)   The Supreme Court reversed the judgment for defendants because of trial court error in refusing to give requested jury instructions on the issue of causation.We recognize that Mitchell was decided before Knight and Ford and that the court in Mitchell did not consider the defense that decedent had assumed the risk of injury.   Nevertheless, the Supreme Court in dictum acknowledged the duty of supervision owed by the adult defendants, stating:  “The jury's verdict, amply supported by the evidence, indicates that Mr. and Mrs. Gonzales and their son Luis were at least partially responsible for [decedent's] predicament.   Mr. and Mrs. Gonzales failed to supervise [decedent] adequately․”  (Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1054, 1 Cal.Rptr.2d 913, 819 P.2d 872.)

9.   BAJI No. 3.38 states:  “Ordinarily it is necessary to exercise greater caution for the protection and safety of a young child than for an adult person who possesses normal physical and mental faculties.   One dealing with children must anticipate their ordinary behavior.   The fact that children usually do not exercise the same degree of prudence for their own safety as adults, or that they often are thoughtless and impulsive, imposes a duty to exercise a proportional vigilance and caution on those dealing with children, and from whose conduct injury to a child might result.”  (BAJI No. 3.38 (8th ed. 1994 bound vol.).)In one decision in which the instruction was to be given regarding a 15–year–old plaintiff the appellate court noted that in place of reference to a “young child” the instruction might be modified to refer to a “youth of adolescent years.”  (Calandri v. Ione Unified School Dist. (1963) 219 Cal.App.2d 542, 547, 33 Cal.Rptr. 333, fn. 4.)

10.   When asked whether he had participated in teaching his daughters to water-ski, defendant replied that he had.   When questioned more specifically, “Would you ever tell Jill [defendant's daughter] how to hold the rope or how to hold her feet, how to get up, any of that?” defendant replied, “Yes, sir.”

11.   If we hold that failing to inquire was not sufficient evidence of recklessness to defeat a motion for summary judgment in this context, but that defendant might have been found reckless if he had inquired and had found that plaintiff's skills were limited, we would be establishing a rule which would encourage adults to remain ignorant of the abilities of the minor children under their care.   This would be like holding that the adult defendants in Mitchell v. Gonzales, supra, 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872, would have been able to avoid a duty to supervise the decedent by taking care never to learn that the decedent could not swim.

HOLLENHORST, Associate Justice.

McKINSTER, J., concurs.