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District Court of Appeal, Second District, Division 4, California.

Edward SHAHINIAN, Plaintiff and Appellant, v. John McCORMICK, Charlotte McCormick, Defendants and Respondents.

Civ. 26089.

Decided: October 19, 1962

Gifford, Wyse, Darby & Franciscus, Pasadena, for plaintiff and appellant. Dryden, Harrington, Horgan & Swartz, by Vernon G. Foster, Los Angeles, for defendants and respondents.

This is an action for personal injuries suffered by plaintiff, a water skier, when struck by defendants' motor boat. Plaintiff appeals from a judgment entered pursuant to a jury verdict for defendants and alleges error in the refusal of the trial judge to give certain instructions to the jury as requested by plaintiff.

The accident occurred on Bass Lake in Madera County. Defendants, Mr. and Mrs. McCormick, were vacationing there with plaintiff, Edward Shahinian, and his wife. Defendants were owners of a sixteen-foot motor boat powered by an outboard engine.

On the day of the accident the weather was clear and the sun was shining. In the afternoon Mr. McCormick and Mr. Shahinian decided to ski together behind the boat. Mrs. Shahinian refused to drive and Mrs. McCormick was thereafter persuaded to operate the boat. It appears that she had not driven the boat in the past as it was recently acquired by the McCormicks, so that she was first instructed by Mr. McCormick in the operation of the boat. After this instruction period the two men skied for about one-half hour and then dropped the tow lines. The men were in the water about three hundred feet apart and the boat continued on about one hundred and fifty feet beyond them. After pulling in the tow lines, Mrs. McCormick turned the boat around and drove back to where her husband was in the water and was told to go over and get Mr. Shahinian as Mr. McCormick wanted to ski some more. Mrs. McCormick then came about and headed toward Mr. Shahinian. The latter was wearing an orange life belt which held him high in the water so that he was clearly visible to all parties.

There was conflicting testimony as to the speed of the boat as it approached Mr. Shahinian. The plaintiff and his wife testified that the boat was traveling approximately fifteen miles per hour and did not slow down at any time. Defendants testified that the boat was heading toward Mr. Shahinian at about ten to fifteen miles per hour and then slowed down before finally reaching him. As the boat approached it was bearing nearly straight on Mr. Shahinian, slightly to his left. In quick sequence, as the boat beared Mr. Shahinian, Mrs. Shahinian, who was riding in the boat, screamed, Mrs. McCormick turned the boat sharply to the right and Mr. Shahinian tried to dive under the boat. The attempted dive was ineffective because of the life belt. The rear of the boat passed over Mr. Shahinian and his arm was gashed by the propeller. The boat then stopped ten to twenty feet from the accident.

Plaintiff's testimony showed his awareness of Mrs. McCormick's inexperience; that he was reluctant to ski with her operating the boat. He said, ‘But there wasn't anything I could do about it.’ He stated he knew it would be necessary for the boat to pick him up when he finished skiing.

The principle question raised on appeal is whether the court erred in refusing to give the following instruction:

‘You are instructed that there was an ordinance in effect at the time of the accident which reads as follows:

‘It is hereby declared to be unlawful * * * for any person to operate or use a boat at a speed in excess of 5 miles per hour * * * within 100 feet of any person who is engaged in bathing or swimming, sking or aquaplaning.’

The ordinance further provides:

‘Any person who uses, operates or drives any boat upon a boating area in willful or wanton disregard for the safety of persons * * * is guilty of reckless operation, which is hereby declared to be a misdemeanor.’ Madera County Ordinance No. 242–A.

‘If you find that the defendant violated said ordinance and that the violation was a proximate cause of an injury found by you to have been suffered by plaintiff, then you are instructed that the principle of assumption of risk does not apply and is not a defense.’

In place of this requested instruction the jury was told:

‘It is unlawful * * * for any person to operate or use a boat at a speed in excess of 5 miles per hour * * * within 100 feet of any person who is engaged in bathing or swimming, skiing or aquaplaning.’ Madera County Ordinance No. 242–A.

The jury was thereafter instructed that if defendant violated the ordinance and if the violation proximately caused plaintiff's injury, a presumption of negligence on the part of defendant arose which could be rebutted by evidence of excuse or justification.

Following the giving of the above instructions the court instructed the jury on the defense of assumed risk. Plaintiff assigns error in refusing to give an instruction removing assumption of risk from the jury's consideration as a defense if a violation of the ordinance was found to have proximately caused plaintiff's injury.

The defense of assumption of risk reflects the individualism of the common law in relationships wherein it was felt that the duty of self-protection against many hazards rested primarily on each participant. See 2 Harper and James, The Law of Torts (1956) section 21.1, page 1165; and ‘in the ordinary case (of negligence based on violation of statute) assumption of the risk will be a defense.’ Prosser, Torts, p. 161. But in certain cases where defendant's negligence is predicated on violation of an ordinance made for the protection of human life, plaintiff does not assume the risk attendant to such violation. (See Finnegan v. Royal Realty Co., 35 Cal.2d 409, 430, 218 P.2d 17.) In the latter instance the statutes or ordinances involved are so clearly intended to protect members of a particular class against their own inability to protect themselves that the policy of the enacting body is interpreted to preclude such defenses. See Prosser, supra, pages 161, 313–314. Examples of such statutes are the child labor acts and laws designed to protect working men on their jobs.

The key to the problem lies in the relationships of the parties as amplified by the surrounding circumstances. Thus, in the vast majority of California cases dealing with this point the relationship of the parties is that of employer and employee. (See, e. g. Lokey v. Pine Mountain Lbr. Co., 205 A.C.A. 587, 596, 23 Cal.Rptr. 293; Loser v. E. R. Bacon Co., 201 A.C.A. 441, 445, 20 Cal.Rptr. 221.) ‘The workman has no alternative but loss of his livelihood, it is his ‘poverty and not his will’ which consents, and economically he is no more free to leave his employment than a soldier or a sailor.' (Finnegan v. Royal Realty Co., supra, 35 Cal.2d 409, 431, 218 P.2d 17, 31.) The relationship of landlord and tenant is another important class of cases where the defense may be barred. For example, where a landlord fails to make repairs to a gas heater after notice from his tenant in violation of a statute, the tenant does not assume the risk of his landlord's omission. (Ewing v. Balan, 168 Cal.App.2d 619, 336 P.2d 561.) And plaintiff's mere passive acquiescence in defendant's violation is not thought to be a waiver thereof. (Martello v. Beletich, 59 Cal.App. 533, 211 P. 20; Finnegan v. Royal Realty Co., supra, 35 Cal.2d 409, 218 P.2d 17.) In McAllister v. Cummings, 191 Cal.App.2d 1, 9, 12 Cal.Rptr. 418, it was held that a motorcycle policeman in hot pursuit with red light and siren under the statutory emergency exemption does not assume the risk that others will not yield the right of way as required by law. It has also been held that an adjoining landowner cannot waive his right of action against maintenance of a nuisance, the existence of which is proscribed by ordinance. (Friedman v. Pacific Outdoor Advertising Co., 74 Cal.App.2d 946, 952–953, 170 P.2d 67.) And finally, where posted signs admonish that use of a swimming pool is at the swimmer's risk, an eleven-year old boy who violates no rules does not assume the risk that defendant will fail to provide a qualified lifeguard at the pool as required by a rule of the State Department of Health (Lindsey v. De Vaux, 50 Cal.App.2d 445, 455–456, 123 P.2d 144). In each of the foregoing examples the relationship of the parties is one where social policy prescribes special duties, usually based on economic necessity and inequality of bargaining power. The voluntary character of the association, principal element of the defense, is thought to be vitiated in such cases.

In the case at bar the relationship of the parties was that of equal voluntary participants in a purely recreational adventure; none of the vitiating elements described above are present. Nobody coerced plaintiff to participate in the water skiing; his livelihood and home did not depend on it. He knew Mrs. McCormick was inexperienced in operation of the boat and admittedly felt some trepidation over her undertaking to do so, even to the extent of considering (possibly in jest) the contingency of being hit by the boat while being handled by Mrs. McCormick. Lack of judgment and experience in operation of the boat clearly include the possibility that she would be unable to properly control the speed or direction of the boat when performing necessary functions relating to water skiing, which all parties knew included picking up skiers who were down in the water. In the light of these circumstances surrounding the voluntary association present here, there was no error in refusing an instruction that violation of the ordinance barred the defense of assumption of risk.

Plaintiff next argues that the instructions given on the doctrine of assumption of risk were fatally deficient because they failed to inform the jury that the defense is available only when the risk has been assumed with knowledge and appreciation of that risk. He asserts the jury should have been instructed that plaintiff must ‘appreciate the magnitude of the risk.’ (See Hawk v. City of Newport Beach, 46 Cal.2d 213, 293 P.2d 48.) The pertinent instruction given by the court is as follows:

‘There is a legal principle commonly referred to by the term ‘assumption of risk,’ which now will be explained to you:

‘A person is said to assume a risk when he freely, voluntarily and knowingly manifests his assent to a dangerous condition, and voluntarily exposes himself to that danger, or when he knows that a danger exists in either the conduct or condition of another, or in the condition, use or operation of property, and voluntarily places himself, or remains, within the area of danger.

‘A person who thus assumed a risk is not entitled to recover for damage caused him without intention, and which resulted from the dangerous condition or conduct to which he thus exposed himself.’ (Emphasis added.)1

Although the phraseology requested by plaintiff was not followed the basic principle that plaintiff must have knowledge of the risk is adequately stated. (See Garcia v. San Gabriel Ready Mixt, 155 Cal.App.2d 568, 572, 318 P.2d 145.) There is no error here.

Plaintiff also claims error in the refusal of the trial court to invoke the doctrine of res ipsa loquitur and to instruct the jury thereon by giving form instructions, B.A.J.I. 206–206–A, revised, which would submit to the jury the elements of the doctrine. The instruction would then advise the jury that an inference of negligence arises if the facts in the case fulfill the stated requirements for application of the rule.

‘The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.’ (Di Mare v. Cresci, 58 A.C. 297, 303, 23 Cal.Rptr. 772, 776, 373 P.2d 860, 864.) In California the rule raises an inference based on probabilities derived from circumstances surrounding the accident. (Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 155 P.2d 42, 158 A.L.R. 1008.) While there are many differences among the several states in enunciating as well as applying the doctrine it appears to be a generally accepted rule that there is no room for the operation of any inference under res ipsa loquitur where the evidence in the case clearly reveals the precise cause of the accident and the facts and circumstances surrounding its occurrence. (See 33 A.L.R.2d 791; Prosser, Torts, p. 214.) In California justification for resort to the inference of negligence is eliminated if the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law; i. e., when the testimony necessarily excludes the use of inference in determining whether there was negligence. (Di Mare v. Cresci, 58 A.C. 297, 304, 23 Cal.Rptr. 772, 373 P.2d 860.) This is so because when the conduct of the defendant attending occurrence of the injury is fully shown and the cause not open to doubt, the question of defendant's negligence is no longer a matter of probabilities; rather it becomes a problem of evaluating the known conduct in light of the duty owed to plaintiff. There is no justification for resort to an inference when nothing remains to be inferred.

All the facts and circumstances in the case at bar were fully presented through testimony to the jury. The cause of the accident was undisputed. While there was conflict in the testimony as to the speed of the boat, it has not been asserted, nor could it be, that resort to an inference is necessary to resolve conflict in testimony of percipient witnesses to the event. The jury was fully instructed on the several direct theories of negligence advanced by plaintiff. In concluding there was no error in refusing to give an instruction on res ipsa loquitur here we have fully considered the salutary rule that introduction of specific acts of negligence into evidence does not necessarily deprive plaintiff of the benefit of the doctrine. (See Di Mare v. Cresci, supra, 58 A.C. 297, 304, 23 Cal.Rptr. 772, 373 P.2d 860; Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 620–622, 155 P.2d 42, 158 A.L.R. 1008.) As pointed out by the Supreme Court in the Di Mare case there are circumstances when the giving of the instructions on the doctrine of res ipsa loquitur would be proper even though evidence has been introduced of specific acts of negligence. However, under the facts in this case we hold there was no room for inference and that the trial judge was not in error in refusing to instruct on the doctrine.

Plaintiff finally argues that it was error to refuse an instruction on the doctrine of last clear chance. This doctrine is designed to ameliorate the sometimes hearsh affects of the defense of contributory negligence and in a proper case refusal to give an appropriate instruction constitutes reversible error. But here, viewing the evidence in the light most favorable to the contention that the doctrine is applicable (Doran v. City & County of San Francisco, 44 Cal.2d 477, 283 P.2d 1), the only act attributable to plaintiff which might be viewed as contributory negligence was his attempt to dive under the boat. In time, the sequence of events occurred rapidly—Mrs. Shahinian screamed, plaintiff dove and Mrs. McCormick attempted to turn the boat sharply. The last clear chance doctrine ‘excludes from its application any case in which plaintiff's state of helplessness, resulting from his own negligence, is created so nearly simultaneously with the happening of the accident that neither party may be fairly said to have thereafter a last clear chance to avoid the accident.’ (Doran case, supra, at page 488, 283 P.2d at page 7.) Since there is no evidence of possible negligence on the part of plaintiff save that immediately attending the occurrence of the accident, the trial court correctly refused to instruct the jury on the doctrine of last clear chance under the rule announced in the Doran case, supra.

The judgment is affirmed.


1.  B.A.J.I. 207, California Jury Instructions The court also gave B.A.J.I. 207–A, 207–B, 207–C and 207–D. The form of these instructions was approved in Ching Yee v. Dy Foon, 143 Cal.App.2d 129, 299 P.2d 668.

BURKE, Presiding Justice.

JEFFERSON and FORD, JJ.,2 concur.

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