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Yace v. Dushane12/16/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
SUMMARY
A wrongful death lawsuit filed by the successors of a scuba diver, who died when her "dive buddy" panicked and ascended to the surface instead of assisting her by sharing his air supply, is barred by the doctrine of primary assumption of the risk.
FACTUAL AND PROCEDURAL BACKGROUND
Katherine Sentner died while scuba diving some sixty feet below the surface of the water at Big Rock near Santa Cruz Island. Her children, Brendan Yace, Christine Weber and Timothy Sentner (collectively, Yace), filed this lawsuit against Dennis Dushane, who was diving with Sentner at the time of the accident. The complaint alleges that Dushane and Sentner agreed to be each other's "dive buddy" during their scuba diving on the day of the accident. During their second dive, Dushane separated from Sentner to obtain his bearings, leaving her at least sixty feet under water. When Dushane descended, he could not find Sentner until he felt her reach for his regulator. Dushane "then negligently panicked and abandoned decedent," ascending to the surface without sharing his air and assisting Sentner to the surface, as is required of a dive buddy. Dushane had sufficient air to share with Sentner, and if he had not "negligently panicked" and abandoned her, she would not have drowned. Yace also alleged a second cause of action for "reckless and intentional conduct," based on identical factual allegations.
Dushane demurred to the negligence cause of action on the ground of failure to state a claim, based on the doctrine of assumption of the risk, and to the second cause of action on the ground of uncertainty. The trial court sustained the demurrer without leave to amend, concluding Yace's claim was barred by assumption of the risk, "which includes that your buddy will panic." Judgment was entered in favor of Dushane and this appeal followed.
DISCUSSION
Yace argues that under the rules of scuba diving, Dushane owed Sentner a duty to share his air supply. Dushane violated that duty, recklessly increasing the risk of death to Sentner. Under these facts, Yace contends, liability is not barred by the doctrine of assumption of the risk. We are compelled to disagree.
The doctrine of assumption of risk operates as a complete bar to a plaintiff's recovery in cases involving "primary assumption of risk," that is, "where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury . . . ." (Knight v. Jewett (1992) 3 Cal.4th 296, 314-315.) The existence and scope of a defendant's duty of care is a legal question "which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury." (Knight v. Jewett, supra, 3 Cal.4th at p. 313.)
A participant in an active sport breaches a duty of care to a coparticipant only if he or she "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." (Knight v. Jewett, supra, 3 Cal.4th at p. 320; see Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 996 [applying a similar s
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