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Boyce v. West11/16/1993
ly assumes the risks which are inherent in the sport. Scott, at 498.
1. Express assumption of risk. Mr. Boyce acknowledged the possibility of death from scuba diving and assumed "all risks in connection with [the scuba diving]
course . . . while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforeseen . . .". Negligent instruction and supervision are clearly risks associated with being a student in a scuba diving course and are encompassed by the broad language of the contract. That Mr. Boyce may not have specifically considered the possibility of instructor negligence when he signed the release does not invalidate his express assumption of all risks associated with his participation in the course. Again, the words used by the court in Madison, at 601 (quoting from Coates v. Newhall Land & Farming, Inc., 191 Cal. App. 3d 1, 9, 236 Cal. Rptr. 181 (1987)), apply just as well to this case:
". . . knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk; by express agreement a 'plaintiff may undertake to assume all of the risks of a particular . . . situation, whether they are known or unknown to him.' (Rest.2d Torts § 496D, com. a, italics added; Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 482.)" (Fn. Omitted.)
As with the release of liability exculpating ordinary negligence, in the absence of a showing of gross negligence, Mr. Boyce's express assumption of all risks associated with his enrollment in the scuba diving course bars a claim for recovery. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 68, at 484 (5th ed. 1984). The summary judgment on this alternative defense was also proper.
2. Implied primary assumption of risk. Although the summary judgment is supported alternatively on the grounds of release of liability and express assumption of risk, the trial court's memorandum decision suggests the court also relied on implied primary assumption of risk as a basis for summary judgment. This was unnecessary. In any case, Mr. Boyce's express assumption of all risk provides adequate grounds to support the summary judgment. We need not, and do not, decide whether implied primary assumption of the risk applies to these facts. Summary judgment was properly granted.
We affirm.
Disposition
Holding that the student's execution of a release from liability and express assumption of all risks associated with scuba diving was valid and precluded liability for ordinary negligence and that there was no evidence of gross negligence, the court affirms the judgment.
Judges Footnotes
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