SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff, Ivan Arrellano (“Plaintiff”) filed this action against Defendants PB Hospitality Group, LLC (“PB Hospitality”) and Liaison Restaurant and Lounge for injuries Plaintiff sustained while attending a party, wherein Plaintiff helped people out of a bounce house that was partially deflated and had his left foot on part of the bounce house when, without warning, another patron jumped in the bounce house and caused air to be pushed to the section of Plaintiff’s foot, thereby causing him injury. Plaintiff alleges a single cause of action for negligence. 

Defendant PB Hospitality now moves for summary judgment. Plaintiff opposes the motion, and PB Hospitality filed a reply. 

 

 

c. Reply Argument 

PB Hospitality contends there is no evidence that the bounce house was defective, and that Plaintiff made his own decision to go to the bounce house knowing people were jumping in it. PB Hospitality argues a bounce house on the site itself is insufficient to impart negligence on PB Hospitality, and that the authority cited by Plaintiff are either inapplicable or actually support PB Hospitality’s contentions. 

 

II. Motion for Summary Judgment 

Summary judgment is proper “if all the papers submitted 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.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.)   

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66, 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) 

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)  

The elements of a cause of action for negligence are duty, breach, causation, and damages.”  (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.)   

Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, depending on the nature of the activity.  (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.)  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.) There is also a duty not to unreasonably increase the risks of injury to participants and spectators 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, at 867 (citation omitted).) 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, at 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, at 1156 (citing to Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 658.¿See also Huffman v. City of Poway (2000) 84 Cal. App. 4th 975, 994 n. 22 (“The courts have applied primary assumption of risk principles to activities other than sporting or recreational endeavors, including injuries in the workplace.”).) 

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].)¿The party who moves for summary judgment has the burden of proving both that a plaintiff’s injury is inherent to the activity they were engaged in and that the moving party’s conduct did not increase the risk of harm to the participants. (Luna v. Vela (2008) 169 Cal.App.4th 102, 112 (citing Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740.).)  

“In determining whether the accident was an inherent risk . . . [courts] turn to the record and common sense.”  (Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1292.)  The doctrine of primary assumption of risk applies “where the risk cannot be eliminated without altering the fundamental nature of the activity.”  (Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658.)’ 

Plaintiff testified that a friend introduced Plaintiff to Sean van der Wilt (“Wilt”), who was the host of the party. For this particular party, Wilt supplied the bounce house. (Def. Compendium, Exh 2; Plaintiff Depo, p. 11, lines 4-25.) Plaintiff attended the party dressed as a clown, and wore booties with 2-3 inch high soles. (Id. at p. 13, lines 2-10; p, 14, lines 12:21.)  

Plaintiff described the incident and the attending circumstances as follows: 

 

Q. How did you accident happened? 

 

A. It happened because people were deflating the bounce house and because I was there and I was trying to help my friend Sean. They were deflating it and Sean actually tried to go in and get them out. So I tried to help them get them out. That's when I put my left foot in the little -- there's like a little slide in the bounce house. I put my foot there to try to get people out and someone jumped and all that pressure hit my feet. 

 

Q. So somebody jumped on you? 

 

A. They jumped on the bounce house and the pressure traveled. 

 

Q. So who jumped on you or jumped on the bounce house? 

 

A. I have no idea because as soon as that happened. I fell on the floor. 

 

Q. What did that person look like? 

 

A. I believe it was a woman, but I'm not sure. There was people in the bounce house. 

 

Q. And who was deflating the bounce house? 

 

A. Whoever was inside the bounce house, the people were trying to get out. 

 

Q. Were they deflating the bounce house because the evening was coming to an end? 

 

A. No, no, because they were drunk and being obnoxious. 

 

Q. And how were they deflating the bounce house? 

 

A. I believe they were holding on to the bounce house, it had like four rails on top. I believe they were pulling them down. 

 

Q. Oh, so they were trying to collapse the bounce house? 

 

A. Yes, as little kids usually do, but these were grown people. 

(Id. at p. 17, lines 3-25; p. 18, lines 1-12.) 

Plaintiff testified no one asked him to walk to the bounce house, and that Plaintiff did it on his own to help Wilt have a better atmosphere. (Id. at p. 18, lines 13-22.) Wilt testified at his deposition that Wilt purchased the bounce house from Amazon and had set it up himself inside the premises. Wilt also hired a person specifically to man the bounce house and testified that his hired person only allowed three or four people were allowed inside the bounce house at a time.  

It is reasonable to infer that falling from a bounce house, which had bounced against Plaintiff’s foot due to movement inside, is an inherent risk of the structure. The risk of a bounce house’s structure of being bouncy with movement cannot be eliminated. Furthermore, the acts of the other patrons bouncing inside does not increase the risks of the bounce house nor is there any evidence of conduct by PB Hospitality that increased the harm to Plaintiff. PB Hospitality did not supply the bounce house nor had any apparent duty to man or supervise the use of the bounce house purchased by Wilt, especially as Wilt hired a person to specifically supervise the bounce house at his own party.  

PB Hospitality meets its burden showing no issues of material fact exist over whether it had a duty to protect Plaintiff from the inherent risk of the bounce house. The burden shifts to Plaintiff to demonstrate an issue of material fact.  

In opposition, Plaintiff argues that the bounce house on PB Hospitality’s property created an unreasonable risk of harm because the bounce house was being used at the party, and that PB Hospitality increased risks encountered by Plaintiff. Just because PB Hospitality allowed Wilt to bring in a bounce house for his party does not make the bounce house inherently dangerous. Furthermore, Plaintiff does not identify any particular acts by PB Hospitality which increased the risk to Plaintiff of being injured by a bounce house, while it was being used as a bounce house. Just because Wilt’s party invited many guests and Wilt had an open bar at his entertainment party is insufficient. Further, Plaintiff provides no grounds or authority obligating PB Hospitality to train or hire employees or security to supervise or to specifically assist patrons out of a bounce house that PB Hospitality did not supply. At the same time, no act by PB Hospitality obligated Plaintiff to assist the patrons inside the bounce house, and to place his foot on a visibly deflating structure when he already observed people being “drunk and being obnoxious” inside the bounce house. In sum, there is no evidence that any act or omission by PB Hospitality which caused Plaintiff’s injuries. PB Hospitality’s rental of the premises to Wilt and Wilt’s decision to utilize a bounce house for a party is not enough.  

Because Plaintiff voluntarily engaged in an activity that involved the inherent risk of falling from being bounced by a bounce house due to patrons jumping inside, PB Hospitality owed no duty of care to Plaintiff to protect him from the inherent risk of the activity. Plaintiff fails to meet his burden of proof of showing an issue of material fact over whether PB Hospitality owed Plaintiff a duty of care.  

 

III. Conclusion  

PB Hospitality’s motion for summary judgment is GRANTED.  

 

Moving Defendant is ordered to give notice.