ORDER ON DEFENDANT'S ) MOTION FOR SUMMARY JUDGMENT
This is a state law products liability action brought by Plaintiff Jeffrey Altman ("Altman") against Defendant HO Sports Company ("HOS"). The case was originally filed in Kern County, but HOS removed to this Court. HOS now moves for summary judgment on all claims alleged against it. For the reasons that follow, HOS's motion will be granted in part and denied in part.
A 2004 article entitled "Wakeboarding Injuries" appeared in the American Journal of Sports Medicine ("AJSM"). See Request for Judicial Notice ("RJN") Ex. 2. *fn2 According to the article, "Wakeboarding began in the mid-1980's as a combination of waterskiing, surfing, and snowboarding." RJN Ex. 2. The article describes wakeboarding as follows:
Wakeboarding is a relatively new water sport in which the wakeboarder or "rider" stands sideways on the wakeboard, similar to the stance used in snowboarding, and is pulled by a boat or an overhead cable system. The rider wears boot-like bindings that are permanently attached to the wakeboard, and if enough force is created, the wakeboarder's foot comes out of the binding, rather than the binding releasing from the wakeboard. The rider jumps over the wake of the boat, thus the name wakeboarding , and can perform various tricks, spins, or flips. Depending on the size of the wake and the skill level of the rider, jumping heights of up to 20 feet can be obtained.
Falls and failing to properly execute a trick are an inherent risk
of wakeboarding. See JUMF's 17, 18. Falling or failing to properly
execute a maneuver or trick can occur in myriad ways and can be the
result of several factors, including human error, the rider attempting
maneuvers he is not proficient at, and the dynamic uncontrollable
conditions of the sport, such as water conditions, boat driving, wind,
and other environmental factors. See JUMF 19. There is an inherent
risk of injury or death to the rider from a fall or failing to
properly execute a trick. JUMF 20. Falls can result in high impact
forces on the rider, either from direct contact with the water or
wakeboard. JUMF 21. The extent and application of forces on the rider
depends upon a number of factors, including inter alia
the rider's speed, the particular maneuver or trick attempted,
and the movement of the rider's body during the trick sequence. See
id. The impact forces can increase depending on the interaction of the
board (or one of its edges) with the water. Id. Because wakeboarding
involves jumping and landing from a height onto a relatively firm
surface, there is also an inherent risk of injury to the rider from
the impact forces generated in the landing. JUMF 22. If the landing is
less than optimal, e.g. the board strikes the water hard or in a
twisting manner or if the body posture is not optimized for absorbing
the impact, the risk of injury increases, especially to the rider's lower extremities. See
id. Based on the dynamics of wakeboarding, injuries to a rider's lower
extremities, including the ankles and knees, are an inherent risk in
the sport of wakeboarding. *fn3 JUMF 29.
Due to the variation in riders' abilities and skill levels, and variation in riding styles, riders seek different design and performance characteristics from their wakeboarding equipment, including their wakeboards and wakeboard boots/bindings. JUMF 14. The design of the wakeboard and wakeboard boots/bindings can affect the riding style and performance of an individual rider. JUMF 15. To accommodate riders' varying riding styles, skills, and preferences, wakeboard equipment manufacturers offer a wide range of wakeboards and wakeboard boots, which offer a wide range of performance characteristics. JUMF 16. Thus, for example, wakeboard equipment manufacturers offer wakeboard boots with varying degrees of stiffness or flexibility. Id.
Because wakeboard boots are secured to the wakeboard to allow the rider to perform tricks, release occurs when the rider's feet and ankles come out of the boots/bindings. JUMF 24. In certain types of falls, a wakeboard boot may not release the rider's foot from the wakeboard boot due to the unique forces and dynamics of the particular fall. See Scott Taylor Dec. ¶ 8.
That is, if sufficient tension forces are not present, the lower extremity will not separate from the binding, and release will not occur. See Van Ee Dec. ¶ 7. Because of the varied and dynamic nature of wakeboarding falls, it is possible for a rider to be injured if his foot releases from the wakeboard boot, and it is possible for a rider to be injured if his foot does not release from the wakeboard boot. See Scott Taylor Dec. ¶ 9.
To accommodate its customer's varying riding styles, skills, and preferences, HOS manufactures and sells several different wakeboard and wakeboard boot models, which offer a wide range of performance characteristics. JUMF30. Thus, for example, HOS manufactures and sells wakeboard boots with varying degrees of stiffness or flexibility. Id. In 2008, HOS offered the Atlas wakeboard boot/binding (hereinafter the "Atlas Boot") as part of its product line.
JUMF32. The Atlas Boot was marketed and sold as a "high performance" boot/binding for use by experienced riders only. JUMF 33. As part of HOS's advertising, HOS stated that the Atlas Boot "fits super snug, but the TPU stretch zone allows your feet to release when they should. This is a durable and hard charging high performance classic." Plaintiff's Ex. K.
Between 1994 and June 22, 2008, Altman was an avid wakeboarder who had been wakeboarding between 800 and 1,000 times. JUMF's 44, 45. Altman considered himself to be an "expert" wake boarder, who was experienced, knowledgeable, and could perform a wide array of tricks. *fn4 See Altman Depo. 79:4-80:7. In Altman's experience as a wakeboarder, the injuries seen more often are leg injuries, including ankles and knees. See id. at 69:14-19. Altman was not aware of a "huge amount" of ankle injuries, see id., but was aware that knee injuries occur more frequently than any other type of injury. See id. at 68:9-15. Altman personally knew people who suffered a broken leg and a broken foot while wakeboarding. See id. at 39:7-14, 42:7-10. Further, around July 2006, Altman fractured his left ankle while attempting to perform a back flip while wakeboarding. *fn5 JUMF50. Also, prior to June 2008, Altman had read warnings or statements to the effect that participation in the sport of wakeboarding involves inherent risk of injury or death. JUMF 49.
Altman sustained an injury on June 22, 2008 while wakeboarding.
See JUMF 1. Altman was wearing Atlas Boots and using a Hyperlite
Monarch wakeboard. *fn6 See JUMF 56. Skyler
Dubrow was operating the boat that was towing Altman. JUMF57. The boat
was traveling at 23.5 mph. See Altman Depo. 124:4-15. *fn7
Altman was doing a trick known as a "front side toe
roll" when the accident occurred. *fn8
See Altman Depo. 122:9-12. Altman felt like he landed short and came
down a little tail heavy. See Altman Depo. 132:22-133:1. Altman
explained that he had a very clean landing in that he went up, came
around, landed, his right foot/ankle snapped and fell over, and then
he let go of the handle. See id. at 133:18--25. Altman explained that
his "ankle bent in half," Id. at 133:3-5, and that he felt his ankle
bend in half. Id. at 135:1-4. Given the way he landed, Altman did not
expect his right foot to have released from the Atlas Boots.
JUMF 63. However, Altman testified that he was critical of the Atlas Boot because it "bent in half with my foot in it." Altman Depo. 136:20-23. Altman did not expect the Atlas Boots to lock his foot into the boot and allow his ankle to bend in half and break. See Altman Dec. ¶ 4. When Altman was brought back on board the boat, the ankle bones could be seen pushing against the skin. See id. at 135:5-19. Altman was taken to the hospital, and it was determined that he suffered a lateral malleolus fracture in the right ankle with displacement. See Bhagia Depo. 101:22-102:15; Plaintiff's Ex. T. The impact of the bottom of Altman's wakeboard with the water created deceleration forces through the wakeboard, the binding, into Altman's lower extremity, including his ankle. JUMF 65. The deceleration forces generated from Altman's landing fractured his right ankle. JUMF 66.
Altman has had to undergo therapy, multiple surgeries, and injections, and has also developed scar tissue and gout, and will likely need to have debridements and ankle replacement surgery. See Bhagia Depo. 103-107, 114-116, 119-120. Altman cannot stand for more than a few hours, cannot perform athletics, and his ability to perform in recreational activities will be severely limited. See id. at 15; Altman Dec. ¶ 5.
The Atlas Boots have a warning label located at the rear of each boot that reads, in part: "WARNING - HIGH PERFORMANCE BINDING: FOR USE BY EXPERIENCED RIDERS
ONLY. USE OF THIS PRODUCT AND PARTICIPATION IN THE SPORT INVOLVES INHERENT RISK OF INJURY OR DEATH. EVEN IF PROPERLY FITTED, THE BINDING MAY OR MAY NOT RELEASE IN A FALL WHICH COULD RESULT IN INJURY. TO REDUCE RISK . 4) READ OWNERS MANUAL BEFORE USE." See JUMF75. The warning label is approximately 1" by 2". See Plaintiff's Ex. AA. The warning label on the Atlas Boot was developed and approved by the Water Sports Industry Association ("WSIA"). JUMF76. The WSIA is an industry association that is comprised of profit and nonprofit entities associated with water sports, including manufacturers of water ski equipment, manufacturers of wakeboarding equipment, and ski boat manufacturers. JUMF 77. This same warning appeared on various HOS boots in 1998, 2001, 2005, 2006, 2007, and 2008. See Plaintiff's Ex. O; Curtin Depo. 66:14-67:14. HOS's warnings expert, Robert Taylor, has opined that the warning is appropriate for the Atlas Boots. See Robert Taylor Depo. 50:16-51:01. *fn10 Altman's expert in boot design, Peter Curran, is critical of the warning in that the warning has not changed despite the evolution of boot/binding design. See Curran Depo. 134:4-9. Curran is also critical of the language that the foot "may or may not release" because the boot is designed to not release. See Curran Depo. 150:16-151:6; 153:10-15; Plaintiff's Ex. B. A Wakeboard and Wakeboard Boot Owner's Manual is included in the packaging of all wakeboard boots sold by HOS, including the Atlas Boots. JUMF78. The Owner's Manual for the Atlas Boots includes the following warning: "The binding, even if properly adjusted, may or may not release in a fall which could result in injury to the ankle, knee, leg, or other parts of the body." JUMF80.
Altman did not read the warnings on the Atlas Boots or in the
Owner's Manual prior to using the Atlas Boots. JUMF 81.
*fn11 When asked why he did not ask Dubrow for the
Atlas Boots owner's manual, Altman responded that, "99.9% of the population
would not read the manual to a pair of boots that you screw into a
board." Altman Depo. 186:4-14. When asked why he did not read the
manual, Altman testified that, "No one would read them." Id. at
186:19-22. Altman further explained that he did not read the manual
because he has been wakeboarding for a long time, he has owned ten
plus pairs of boots, the Atlas Boots are no different than other
boots, and one puts them on the board and then rides them. See id. at
186:23-187:2. For some of the first boots that Altman purchased,
Altman did read the "paperwork" that came with the boots. See Altman
Depo. 86:1-13. However, as Altman purchased more boots over the years,
he stopped reading the boots' "paperwork." See id. at 86:14-16. While
Altman read warnings "early on" in the past, his recollection of the
warnings was that the warnings indicated that there are risks involved
in wakeboarding. See id. at 87:6-88:10. When asked if he would have
used the Atlas Boots if the owner's manual stated that "the binding
even if properly adjusted may or may not release in a fall which could
result in injury to the ankle, knee, leg or there parts of the body,"
Altman responded that he was "not sure" and that it would be a "rough
call" if he would have used the Atlas Boots. *fn12
See id. at 187:3-12.
In 2008, HOS considered the Atlas Boot to be the stiffest and most supportive wakeboard boot in its product line because it has one of the highest ankle cuffs and densest durameter of EVA foam inside the boot. JUMF34. The lateral, i.e. side to side, stiffness of the Atlas Boot is comparable to other wakeboard boots available at or near 2008. See Scott Taylor Dec. ¶ 15. While the Atlas Boot has a dense EVA that supports the foot and ankle, this is not the only means of ankle support that the boot provides. JUMF 37. The Atlas Boot has an outer covering made of synthetic leather that extends over and above the rider's ankle, thus providing additional support to the ankle. Id. The boot also has a strap made of TPU rubber that surrounds the rider's lower leg, above the ankle. Id. The strap and the boot's laces can be tightened to provide more support to the ankle. Id. However, Altman's expert Peter Curran has "identified an inconsistent lateral and medial flex pattern in the [Atlas Boots], that leave the ankle unsupported at the cuff of the boot." Plaintiff's Ex. B. Specifically, Curran explained:
The construction of the [Atlas Boot] is comprised of a supportive lower area, known as the vamp and the quarter. There is an open area around the ankle area which is only supported by the neoprene inner liner. Finally, the upper area, or cuff, incorporates a Velcro strap, but with very little in the way of supportive materials built into the boot itself. By creating a stiff lower area and a soft cuff area with no supportive flex transition, the boot in effect acts as an unsupported hinge just above the ankle bone, the weakest point in the foot-to-leg connection. id. Similarly, Altman's treating orthopedist, Dr. Umesh Bhagia, testified that the Atlas Boot seemed "like a really well-padded boot, down around the heel and snug around the foot. But the part around the ankle was very soft. And, in fact, between the strap and the part that was holding on the heel, there was a portion that was really almost nonexistent that would allow him to twist or bend or torque in any way it wanted to go." Bhagia Depo. 65:18-66:4. That is, the Atlas Boot "allowed the foot to stay in one place and the rest of the ankle and body to move on top of it." Id. at 124:1-7. The Atlas Boot also had a strap made of TPU rubber (a synthetic polymer that stretches, but resists tearing) to facilitate the release of the rider's feet in falls in which it might be possible to release from the boots. JUMF 38. In certain types of falls, the Atlas Boot will release a rider's foot. See JUMF 40. However, Curran opined that, "the tightening systems do not seem to allow the foot to release completely or consistently; rather they are designed to retain the foot into the boot, but still allow micro movement." Plaintiff's Ex. B. Dr. Bhagia opined that the design of the Atlas Boot "helped cause" Altman's injury because the Atlas Boot did not release ...