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Mellor v. Schuler1/30/2002
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Rosalie Mellor sued defendant Arnold Schuler after she was injured in a waterskiing accident. Summary judgment was entered in favor of defendant, based upon primary assumption of the risk. Plaintiff appeals contending (1) primary assumption of the risk does not bar her negligence cause of action because (a) plaintiff and defendant were not coparticipants at the time of injury , (b) imposing liability would not chill participation in or alter the nature of the sport of waterskiing, (c) the risk was not inherent in the sport, and (d) as a matter of public policy, a duty of care should be imposed on defendant; and (2) the trial court's determination was not supported by admissible evidence. Finding primary assumption of the risk bars plaintiff's negligence cause of action, we affirm.
FACTS
On August 22, 1997, plaintiff was waterskiing with defendant on the San Joaquin Delta. Defendant both owned and operated the ski boat involved. Plaintiff, defendant, and two others had been boating and waterskiing in defendant's boat for approximately four hours on the day in question. The group took turns waterskiing behind the ski boat. Between ski runs, each person would reboard the ski boat and ride in the boat while another person waterskied. Prior to the incident in question, plaintiff was waterskiing behind defendant's boat. While plaintiff was in the process of returning to the boat, after her last run, defendant put the boat's transmission in, what he believed to be, the neutral position, that is, the motor disengaged from the propeller. As the conditions were choppy, defendant could not, from his vantage point, decipher any movement in the water indicating the propeller was still engaged. Defendant instructed plaintiff to hold onto the towrope and helped her return to the boat. While being assisted back to the boat, plaintiff crossed near the stern and the ladder providing access onto the boat. As plaintiff was being pulled toward the boat, she noticed the dirty water of the Delta churning. Realizing the propeller was turning, plaintiff dropped the towrope and forcefully kicked in an attempt to avoid the propeller. In the process of kicking, plaintiff's leg came into contact with the engaged propeller, causing her injury .
Defendant stated that, during more than 25 years of waterskiing, he had left the motor running with the transmission in neutral while recovering skiers from the water and he had seen many others employ the same practice. Plaintiff did not contest, and actually admitted, a boat driver could safely recover a skier by putting the boat in neutral. Defendant additionally presented the deposition testimony of an experienced ski boat operator, Edward Vandermeulen, who stated he occasionally used the same procedure. Plaintiff made no attempt to rebut this evidence. With no evidence to the contrary, the record indicates the practice of leaving the motor in neutral when retrieving skiers from the water is a common activity associated with the sport.
Plaintiff brought a personal injury action against defendant for negligence and negligent entrustment. Plaintiff concedes the negligent entrustment cause of action was merely precautionary and there are no facts to support it. Summary judgment was entered in favor of defendant based upon primary assumption of risk. Plaintiff appeals.
STANDARD OF REVIEW AFTER SUMMAR
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