Judge Jill Feeney, Case 21STCV09851 2023-01-18 Tentative Ruling

This is an action for premises liability, negligence, and negligent hiring arising from a roller skating accident which took place in December 2019. Plaintiff Geraldine Myers filed her Complaint against Defendant Skateland Enterprises, Inc. on March 15, 2021.

Skateland moves for summary judgment on the grounds that Plaintiff’s claims are barred by the doctrine of primary assumption of risk. Skateland argues it had no legal duty to eliminate or protect against risks inherent to roller skating itself, such as bumping into other skaters and falling. Skateland also argues it did not increase the risks associated with roller skating because there is no evidence that Skateland maintained its facility in a way that was reckless or outside the range of ordinary activity for the operation of the facility. Skateland also argues that an expert opinion does not create a triable issue of fact on a motion for summary judgment based on a primary assumption of the risk defense.

Plaintiff argues that Skateland’s actions increased the risk of falling because it failed to limit the number of people in the skating rink, the DJ and Manager were not within the rink, the number of skateguards supervising the rink was inadequate, and Skateland’s employees failed to remove the skater who bumped into Plaintiff after he ignored instructions to slow down. Plaintiff also argues that she will have an expert contradicting Skateland’s position.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

Skateland moves for summary judgment on the grounds that Plaintiff’s claims are barred under the doctrine of primary assumption of the risk. Skateland argues that bumping into other skaters and falling is an inherent risk of roller skating and that it did not do anything to increase this inherent risk.

The primary assumption of the risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [“[p]rimary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms”].) “The doctrine of ‘primary’ assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].)

“Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . . Whether a duty exists ‘does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on [1] the nature of the activity or sport in which the defendant is engaged and [2] the relationship of the defendant and the plaintiff to that activity or sport.’ If a duty is found not to exist, primary assumption of risk applies, and a defendant is liable only if he intentionally injures the plaintiff or engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity.” (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866 (citing Knight v. Jewett (1992) 3 Cal.4th 296, 313).) There is also a duty not to unreasonably increase the risks of injury to participants beyond those inherent in the activity. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162.) The doctrine of primary assumption of risk applies “where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport [or activity] itself.’” (Saville, supra, 133 Cal.App.4th at p. 867.)

To evaluate the applicability of the primary assumption of risk doctrine, a court must examine “the nature of the sport itself,” as well as “the defendant’s role in, or relationship to, the sport.” (Knight, supra, 3 Cal.4th at p. 317.) “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’” (Nalwa, supra, 55 Cal.4th at p. 1156 [citing Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658].)

Here, The parties do not dispute that bumping into other skaters and falling is an inherent risk of roller skating, especially in a group setting such as the Sunday night group skating event that Plaintiff participated in on the night of the incident. Thus, this motion turns on whether Skateland increased the risk of Plaintiff falling.

The elements of this exception to primary assumption of the risk are as follows: (1) Skateland operated the roller skating rink; (2) Skateland unreasonably increased the risks to Plaintiff over and above those inherent in roller skating; (3) Plaintiff was harmed; and (4) Skateland’s conduct was a substantial factor in causing Plaintiff’s harm. (CACI No. 372.)

Plaintiff alleges in her First Amended Complaint, (“FAC”) that Skateland failed to regulate the skating floor, failed to provide trained skating supervisors, and failed to prevent a rogue skater from injuring Plaintiff. (FAC, ¶¶21-24.) Skateland argues in its motion for summary judgment that it did nothing to increase the risk associated with the activity of roller skating.

Skateland’s evidence shows that on December 29, 2019, Plaintiff fell at Northbridge Skateland during a Sunday evening, public skating session. (UMF No.1.) Plaintiff was wearing her own roller skates. (UMF No.2.) At the time of the incident, Plaintiff was beginning to skate onto the skating floor. (UMF No.3.) Plaintiff was bumped from by another skater, causing her to fall and suffer injuries. (Myers Depo., 114:12-25.) At the time of the incident, there were three floor guards in the skating rink monitoring the skaters, a program director monitoring the floor from outside the rink, and a supervising manager on the premises. (UMF No. 4.)

Based on Fleming’s review of attendance records, there were approximately 300 patrons at the rink that evening. (Fleming Decl., ¶5.) Fleming reviewed the surveillance camera footage from the evening of the accident and estimates that there were about 150 patrons on the skating floor at the time of the incident. (Fleming Decl., ¶¶ 2,6.) Fleming testified that this was an average number of people on the skating floor during evening public skating sessions. (Fleming Decl., ¶ 6.)

Fleming authenticated a copy of the Roller Skating Association’s Risk Management Guidelines and attached them as Exhibit C to his declaration. According to those Guidelines, which were in effect at the time of the accident, it was recommended that one floor guard be provided for every 200 patrons. (Fleming Decl., ¶ 4; Attached Exhibit C at pg. 13.)

In addition to the three floor guards, also present was a program director/DJ who was supervising from an elevated area that was adjacent to the skating floor. This individual had access to a microphone in order to make announcements to the patrons. (Fleming Decl. ¶ 5.)

Ms. Henn also testifies about the presence of the three floor guards, as well as the Program Director/DJ on the night of the accident. (Henn Declaration ¶ 2.) Henn states that after receiving a complaint about a male patron who was skating too fast, Henn spoke to the individual and reminded him to skate safely, to be in control of his speed, and to be mindful of other skaters. (Henn Decl., ¶ 3.) Henn did not receive any further complaints about the patron that evening. (Henn Decl., ¶ 4.) Henn subsequently learned that this man made contact with Plaintiff on the skating floor causing her to fall. (Id.)

According to Fleming, the video shows that Plaintiff’s outstretched arm was bumped by a male patron skating by her after she returned to the skating floor. Fleming further notes that this was “incidental conduct” and that he did not observe the male patron violating any of the rules of the skating facility. (Fleming Decl. ¶ 7.)

In response, Plaintiff contends that Defendant Skateland increased the risk by not having an adequate number of skate guards; by not removing a skater who was violating the rules; and by not removing all the skaters from the rink as opposed to ordering a stop while gum was cleaned from the floor.

Plaintiff presents her declaration which indicates that she stopped skating based upon a public announcement. When Plaintiff stopped, she was hit by the other skater whom she alleges was traveling at excessive speed. (Plaintiff’s Decl. at Paragraphs 8-10.) Plaintiff further alleges that Defendant Skateland did not have a sufficient number of skate guards at the facility and that if Defendant had trained skate guards in the rink, that would have prevented the “wild skating” of the other individual who hit her. (Plaintiff’s Declaration.)

Plaintiff fails to meet her burden. Plaintiff does not establish that there is a triable issue of material fact as to whether Defendant had the appropriate number of skate guards on the floor . On one of the video clips (which do not show the entire rink), the Court sees at least two skate guards on the floor which is in keeping with the industry standards. Plaintiff offers no evidence to the contrary.

Plaintiff also contends that Defendant Skateland increased her risk by allowing the presence of a reckless skater who had previously been warned to skate more carefully. Here, the video evidence shows that the skater in question was not skating recklessly or fast at the time of the accident. The video does not show Plaintiff stopped. Rather, both she and the individual with whom she collided are moving slowly and carefully at the time. The accident appears to be a low-speed interaction that caused Plaintiff to lose her balance and fall. The fact that Plaintiff presented a declaration that contradicts the video does not create a disputed fact. (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 534 fn. 4.)