The opinion of the court was delivered by: WILLIAM B. ENRIGHT
The genesis for this case arises from a May 31, 1992 collision between two sailing vessels during a sailboat race on San Diego bay. The race was sponsored by BMW and KFSD-FM 94.1 (a local radio station), among other corporate sponsors, and was called the "BMW Sailing Classic Regatta." The vessel Stella Maris was piloted by the plaintiff, John Whalen. The vessel Picaro was piloted by the defendant, James Buske. During the course of the race the vessels collided as they rounded a course mark. Plaintiff's complaint in Admiralty was filed June 10, 1993 and initially named defendant Buske as well as the corporate sponsors. The sponsors of the regatta were later dismissed from the case. A complaint in intervention was also filed by plaintiff's property damage carrier and the claims for property damage have been settled. The only claims remaining before this court entail claims for personal injury by the plaintiff. Plaintiff alleges he suffered a rotator cuff injury as a consequence of the collision. Plaintiff states defendant was at fault for the collision, and plaintiff's protests alleging defendant violated United States Yacht Racing Union (USYRU) Rule 36 (vessel on port tack to give way to vessel on starboard tack) caused defendant to be disqualified from the race.
Defendant moves for summary judgment based upon the application of the assumption of risk doctrine, or in the alternative argues assumption of risk should be an issue considered by the jury in this case.
ASSUMPTION OF RISK AS APPLIED TO YACHT RACING
The question presented is whether assumption of risk can apply in the context of a yacht race where the injured participant has allegedly executed an express assumption of risk in the form of a race application.
This court finds the case at bar is unlike any yacht racing decisions previously published. Here, the plaintiff (through his wife completing a race application, see deposition of John Whalen at p. 96) signed a form which expressly stated:
3. I assume any risk of injury arising out of: my participation in the race, failure or breakage of my yacht, or any of its equipment, or weather conditions.
Few courts have addressed the issue of assumption of risk as applied to yacht racing. The earliest decision was Dunion v. Kaiser, 124 F. Supp. 41 (E.D. Pa. 1954), which held assumption of risk was applicable to a motor boat race where two boats collided. The Dunion court eloquently explained:
The Dunion decision has not been expressly overruled; however, it has been criticized by the only appellate court to address this issue. De Sole v. United States, 947 F.2d 1169, at note 2. The De Sole court noted the Dunion case has been rarely cited, and in the context of commercial collisions, the assumption of risk doctrine does not apply.
In De Sole v. United States, 947 F.2d 1169, the court discussed the issue, reserving a ruling on whether assumption of risk could apply in the context of a boat race. In De Sole, the court held that the district court had prematurely dismissed a claim arising from a boating collision during a yacht race based upon assumption of risk, and remanded the case for further fact findings. The De Sole court did provide some insight into their thoughts on the issue and stated:
If, indeed, we are obliged to decide flat out whether assumption of risk applies to a yachting race on the high seas...the majority would be disposed to hold there is ordinarily no assumption of risk doctrine applicable to collisions between contestants in a maritime race of the nature presented. A decision that the assumption of risk doctrine usually does not apply to race collisions in admiralty, leaves open the possibility that, in certain circumstances, a court could find that a particular sailor had assumed the risk of collision. For example, a yacht club could require all racing participants in advance of the race to sign a statement that they would not sue for damages in negligence in the case of collision, there-by assuming the risk. Id. at 1174.
The De Sole court then cited Prosser and Keaton on Torts, noting that the issue of assumption of risk is usually left to the fact finder to determine whether 1) the plaintiff knew the risk was present and the risk's nature; and 2) the plaintiff's ...