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John B. Wallace v. Busch Entertainment Corporation

August 16, 2011

JOHN B. WALLACE,
PLAINTIFF,
v.
BUSCH ENTERTAINMENT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

In this personal injury action, Defendant filed a motion for summary judgment, which Plaintiff opposed. For the reasons which follow, Defendant's motion is GRANTED IN PART AND DENIED IN PART.

Plaintiff, a California attorney proceeding pro se, was injured at SeaWorld San Diego, which is allegedly owned and operated by Defendant. Plaintiff purchased a ticket to use the bungee trampoline ("Equipment") at the Xtreme Zone of the park. Before obtaining permission to use the Equipment, Plaintiff was required to and did read and sign a liability waiver ("Release"). A SeaWorld employee ("Attendant") was then assigned to Plaintiff. He outfitted Plaintiff with a harness, which was placed around his waist, and two bungee cords, one connected to each hip. The Attendant instructed Plaintiff not to flip until the Attendant determined that it was safe to do so. When the Attendant instructed him to do so, Plaintiff started to flip. Before and when he began to flip, Plaintiff's arms were outstretched as he held on to the bungee cords. On his first and only flip, Plaintiff experienced pain in his left arm. He immediately stopped and left the Equipment to seek first aid. Plaintiff later learned he had torn a tendon in his left biceps. Plaintiff filed a negligence action in state court. Defendant removed it to this court based on diversity. Subsequently, Plaintiff amended the complaint. In the operative complaint, Plaintiff alleged claims for strict products liability -- design defect, strict products liability -- failure to warn, breach of express warranties -- intended use, breach of implied warranties -- intended use, negligent products liability -- design defect, negligent products liability -- failure to warn, declaratory judgment, gross negligence, negligence per se and negligence.

Defendant moved for summary judgment. Rule 56 of Federal Rules of Civil Procedure empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).

The moving party's burden on summary judgment depends on whether it bears the burden of proof at trial with respect to the claim or defense at issue. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." See C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). If the moving party does not bear the burden at trial, it can meet its burden on summary judgment by pointing out the absence of evidence with respect to any one element of the claim or defense. See Celotex, 477 U.S. at 325.

If the movant meets its burden on summary judgment, the burden shifts to the non-movant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324. In this regard, the non-movant must "go beyond the pleadings" and rely on "evidentiary materials" such as his "own affidavits, or . . . the depositions, answers to interrogatories, and admissions on file" to designate specific facts in opposition to the summary judgment motion. Celotex, 477 U.S. at 324 (internal quotation marks omitted). These evidentiary materials must show that genuine factual issues remain which "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The non-movant does not meet this burden by showing "some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

When ruling on a summary judgment motion, the non-movant's evidence is to be believed, and all justifiable inferences are to be drawn in his or its favor. Anderson, 477 U.S. at 255. Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate inferences are jury functions, and are not appropriate for resolution by the court on a summary judgment motion. Id.

Defendant moved for summary judgment, arguing essentially that the claims are precluded by the doctrine of assumption of risk, that the products liability and breach of warranty doctrines do not apply to it and that, to the extent not barred by these legal theories, Plaintiff lacks evidence to prove his claims. California substantive law applies in this diversity action. See Intri-Plex Technol., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) & Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

Defendant argues Plaintiff's gross negligence claim should be dismissed for lack of evidence and that his remaining negligence claims are barred by the doctrine of contractual express assumption of risk. "An express assumption of risk is a complete defense to a negligence claim." Moser v. Ratinoff, 105 Cal. App. 4th 1211, 1217 (2003). It is undisputed that Plaintiff signed a Release waiving claims connected to his use of the Equipment.

Plaintiff argues that the Release should not be enforced under California's public policy to protect consumers from injuries caused by defective products.*fn1 Generally California courts have "concluded categorically that private agreements made in the recreational sports context releasing liability for future ordinary negligence do not implicate the public interest and therefore are not void as against public policy." City of Santa Barbara v. Super. Ct. (Janeway), 41 Cal.4th 747, 760 (2007) ("Janeway") (citing cases) (internal quotation marks and citations omitted).

Plaintiff specifically contends, however, that his case presents a public safety issue rather than a recreational activity issue because Defendant's activity was regulated under the Permanent Amusement Ride Inspection Program, Cal. Labor Code § 7920 et seq., which includes multiple requirements to ensure equipment safety and proper training of employees, see, e.g., id. §§ 7923-27; 8 Cal. Code of Reg. § 3195.3 et seq. Releases are not effective to shield against liability for statutory violations. Capri v. L.A. Fitness Int'l, LLC, 136 Cal. App. 4th 1078, 1085 (2006), citing Cal. Civ. Code § 1668.

This issue is raised in the first amended complaint, where Plaintiff alleged Defendant's business was regulated under laws pertaining to amusement parks and violated pertinent legal requirements. (First Am. Compl. at 15, 23 (negligence per se).) In its motion, Defendant argues Plaintiff cannot maintain a claim of negligence per se for two reasons.

First, Plaintiff testified he was "not aware of any laws, statutes, or regulations that [Defendant] breached or allegedly violated in connection with the bungee trampoline ride." (Joint Statement at 5.) Defendant argues for summary judgment based on this testimony. The purpose of discovery, including depositions, is to elicit evidence rather than legal argument. Plaintiff's testimony therefore does not preclude him from making a legal argument in opposition to Defendant's summary judgment motion. Defendant's first argument is therefore rejected.

Second, Defendant points to Certificates of Compliance, which show that its Equipment met the requirements of Title 8, California Code of Regulations Section 344.7(b). (Burton Decl. at 2 & Exh. 4.) The certificates show that the Equipment passed a safety inspection. See 8 Cal. Code Reg. § 344.7(b). Plaintiff does not contend that the Equipment failed to pass a safety inspection. He argues that the Attendant was not trained on the safe use of the Equipment as required by law. He suggests Defendant violated the Permanent Amusement Ride Inspection Program because his Attendant failed to instruct him not to grip the bungee cords. (See Wallace Decl. ¶ 2; Suppl. Wallace Decl. at 2.) This evidence supports a reasonable inference that the Attendant was not properly trained on how to safely use the Equipment. See Anderson, 477 U.S. at 255 (all justifiable inferences drawn in the non-movant's favor). Defendant did not address this argument in his reply. Accordingly, there is a genuine issue of fact whether Defendant violated the Permanent Amusement Ride Inspection Program and thus precluded reliance on the Release as a defense to negligence per se.

In the alternative, Defendant relies on the doctrine of primary assumption of the risk, another "exception to the general rule of due care frequently applied in cases involving sports." Eriksson v. Nunnink, 191 Cal. App. 4th 826, 838 (2011).

Primary assumption of the risk means that the plaintiff has voluntarily participated in a sport that includes various inherent risks, and therefore, the defendant is relieved of his or her duty to use due care to avoid the plaintiff suffering an injury as a result of those inherently risky aspects of the sport. The question of whether a defendant should be relieved of his or her duty is a question of law and policy. A court must evaluate (1) the fundamental nature of the sport, and (2) the defendant's relationship to the sport, in order to determine if the defendant should be relieved of his or her general duty of care. As a matter of policy, a duty should not be imposed where doing so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events. If the defendant is relieved of his or her duty of care, then the plaintiff's negligence cause of action is barred.

Rosencrans v. Dover Images, Ltd., 192 Cal. App. 4th 1072, 1082-83 (2011) (internal quotation ...


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