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Westlye v. Look Sports Inc.8/23/1993
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT DISTRICT
No. C013447.
1993.CA.42843 ; 17 Cal. App. 4th 1715; 22 Cal. Rptr. 2d 781
Decided: August 23, 1993.
BRAD C. WESTLYE, PLAINTIFF AND APPELLANT,
v.
LOOK SPORTS, INC., ET AL., DEFENDANTS AND RESPONDENTS.
Superior Court of Placer County, No. 80334, Larry D. Gaddis, Judge.
Philip A. Olsen and Charles G. Kinney for Plaintiff and Appellant.
Hancock, Rothert & Bunshoft, Paul S. Rosenlund, Paul E. Fagan, Mark D. Tokunaga and Carin C. Duryee for Defendants and Respondents.
Opinion by Sims, J., with Sparks, Acting P. J., and Scotland, J., Concurring.
Sims
Plaintiff Brad C. Westlye fell while snow skiing and was injured, allegedly due to defective ski equipment rented from defendant Klein's Ski Shop (Klein's) and distributed by defendants Look Sports, Inc., Look U.S.A., Inc., and Nordica U.S.A., Inc. (the distributor defendants). Plaintiff filed suit alleging claims of strict products liability, negligence, breach of warranty, breach of contract, misrepresentation, and fraudulent concealment. The trial court granted defendants' motion for summary adjudication on all causes of action except fraudulent concealment, concluding that the claims were barred by a written agreement in which plaintiff accepted the equipment "as is" and expressly assumed the risk of injury. Following trial on the fraudulent concealment claim, plaintiff appeals from the judgment, challenging only the trial court's determination of the summary adjudication motion. We will conclude, among other things, that the written agreement does not bar plaintiff's recovery under a theory of strict products liability in tort. We shall therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was injured when he fell while skiing at Sugar Bowl ski resort, and the left safety binding failed to release the ski from the boot. Plaintiff
had rented the ski equipment from Klein's, which had purchased the equipment from the distributors.
The first amended complaint alleged the following causes of action:
1. Strict products liability--based on defective product--against all defendants;
2. Negligence in the design, manufacture, and distribution of the equipment, against all defendants;
3. Negligence in the mounting, maintenance, service, and adjusting of the safety bindings, against Klein's;
4. Breach of express warranties that the binding would release when necessary to prevent injury, against all defendants;
5. Breach of implied warranty that the binding would release when necessary, against all defendants;
6. Breach of contract against Klein's for failing to adjust the binding so it would release when necessary;
7. False representation against the distributor defendants for advertising the bindings as safe;
8. Negligent misrepresentation against the distributor defendants;
9. Intentional misrepresentation against the distributor defendants; and
10. Fraudulent concealment against all defendants for concealing from the public the fact the bindings do not release in all circumstances where release is necessary to prevent injury.
Plaintiff also sought punitive damages.
Defendants filed an answer which included
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 California Personal Injury Attorneys
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