(Super. Ct. No. CV034817)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Christian Wyatt Barton, a skydiver, jumped out of an airplane owned and flown by defendant William R. Dause, Jr., and hit the horizontal stabilizer on the plane's tail on his way to the ground (a "tailstrike"). Barton sued, claiming Dause was grossly negligent and increased the inherent risks of skydiving. After the jury returned a defense verdict, and the trial court denied a new trial motion, Barton timely filed this appeal.
As we shall explain, the trial court properly submitted the issue of primary assumption of risk to the jury, properly instructed the jury thereon, and did not abuse its discretion in making certain evidentiary rulings. These conclusions appear to resolve the contentions raised by Barton's briefing on appeal (which is difficult to decipher). Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises after a two-week jury trial. The parties submitted an appendix in lieu of a clerk's transcript. Barton, as the appellant, bears the burden to provide an adequate record to support his claims. (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) "To the extent the record is incomplete, we construe it against him." (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498 (Sutter Health).)
Barton sued Dause and others not party to this appeal, alleging that on August 22, 2006, Barton was injured while skydiving, due to Dause's negligence.
Dause filed a pro per answer.*fn1 Dause denied the allegations and raised several affirmative defenses, including that Barton "assumed the risk" of jumping, and had executed a written waiver releasing Dause from liability.*fn2
During in limine motions, the trial court stated the case involved primary assumption of the risk. Dause included CACI No. 408, regarding primary assumption of the risk, in his list of proposed jury instructions.*fn3
With leave of the court, Barton filed an amended complaint that alleged Dause's conduct "greatly increased the risks to which Plaintiff would otherwise have been exposed, well beyond the inherent risks of skydiving[.]"*fn4
During in limine motions, both parties mentioned primary and secondary assumption of the risk, and Barton argued CACI No. 408 was factually inapplicable because Dause was a pilot, not a coparticipant, and Dause had been grossly negligent, increasing the inherent risks of skydiving.
Barton's trial theory was that Dause did not operate the plane (a Beechcraft Model 99 or "Beech 99") to allow Barton a safe exit at 3,000 feet, but continued to climb to quickly reach a higher altitude from which other skydivers were going to jump. Dause (1) should have leveled the plane and slowed down to give Barton a safe exit, or (2) should have warned Barton of the hazard of not leveling and slowing the plane so Barton could adjust his exit technique, or (3) should have flown a different available plane (a de Havilland Twin Otter), that posed no danger of a tailstrike. Barton denied he jumped "up" as he exited, and denied he had been warned to avoid jumping "up" as he exited. Barton conceded he assumed "the inherent risks in the sport" but argued he did not assume the increased risks created by Dause's conduct.
Dause's trial theory was that Barton was an experienced skydiver who had recently been warned that he needed to jump "out" instead of "up," but disregarded this warning and caused his own injuries.
Dause was called by Barton as an adverse witness and testified that he had been skydiving since 1964, began flying in 1968 or 1969, and had been a skydiving instructor for over 40 years. The skydiver "tells the pilot what to do" and if a skydiver asked, Dause would level the plane and slow down for a low-altitude dive, otherwise "we'd go straight [to] altitude and drop people off on the way up." Neither the speed nor level of a Beech 99 increases the risk of a tailstrike "with the proper exit[,]" but, "You don't jump up to leave the airplane at whatever configuration it's in." The tail can be hit in any plane "because of an improper exit." Dause was told that in Barton's "jump or two just before [the accident], he had had a near miss on the tail," and Dause told Guillermo Da Silva (Dause's employee, who was also Barton's former instructor, and was in the plane the day of the accident) to talk to Barton "about changing his exit habits." On Barton's last jump, Dause was probably "close to maximum climb rate" and climbing speed. Barton had asked for a "pass" at 3,000 feet, which Dause performed, but Barton had not asked Dause to level the plane or slow down. In Dause's opinion, had Barton "made a dive-out exit" he would not have hit the plane, but Barton "lunged up on his exit[.]"
Dause also owned a Twin Otter, and testified that the tail is higher on a Twin Otter than on a Beech 99, but the tail configuration on the Beech 99 is common among other planes used for skydiving.
James Halliday, who had his own skydiving facility in Sonoma County, saw Barton jump out--but not up--and hit the horizontal stabilizer of the tail.
Barton's retained expert, Michael Turoff, testified Dause's actions were "an extreme departure" from accepted norms. First, the plane should have been leveled and slowed. Second, Dause should have warned Barton--such as by a posted placard--about the danger of jumping in the altitude Dause flew. Third, if Dause allowed low-altitude jumps in a climbing altitude, he should have used a different plane, such as the Twin Otter, with a higher horizontal stabilizer.
On cross-examination, Turoff conceded that an "experienced" skydiver could safely jump from the Beech 99 in the altitude Dause flew it, defined such a person as someone with "200 jumps" as a benchmark, and conceded Barton's logbook reflected 197 jumps, and that he may have made more. Turoff conceded each skydiver is responsible for jumping safely. Turoff also conceded that Dause had peer-reviewed a skydiving textbook book Turoff co-authored.
Barton testified he began skydiving in 2004, and Da Silva had been his instructor. His logbook reflected 190 jumps, and about 75 were from the Beech 99. He had done 10 to 15 "hop and pop" jumps (deploying the parachute immediately, rather than experiencing free-fall), some between 3,000 feet (the minimum allowed) and 6,000 feet, but had never done a low-altitude jump from the Beech 99. On his last jump, he stepped "out and away" from the plane. Da Silva had not warned him about a "close call" earlier. Barton had had aspirations to become an aerial videographer.
Stephen Caperton, a friend of Barton's, testified that he retrieved Barton's belongings after the accident, including a helmet recorder, but Caperton claimed he accidentally recorded over the footage of Barton's exit.
Dennis Murphy, an expert skydiver, testified a diving exit is best when jumping "a hop and pop" from the Beech 99, and jumpers are commonly warned to keep their head down. Had Barton left the plane as he described--"laterally"--he could not have hit the horizontal stabilizer. Murphy had made "hop and pop" exits from the Beech 99 while it was climbing at Dause's center, and had made other "hop and pop" exits at other skydiving centers in "a Pack 750" which has a similar tail configuration to the Beech 99. It was "a common practice" to permit "hop and pop exits" while the plane was climbing.
Roger Gill was on the plane when Barton jumped, and testified Barton "left in an upward motion almost leaping as he went out the door."
Michael Knight, an expert skydiver, had seen Barton make about 20 to 25 low-altitude hop and pops from Dause's Beech 99. On Barton's penultimate jump, Knight saw Barton make a "jumping up exit" at about 3,000 feet and nearly hit the horizontal stabilizer. Knight spoke to Da Silva, who said he would talk to Barton. On the next jump, Knight heard Da Silva tell Barton, "'Make sure you keep your head down. Don't jump up[,]'" and Barton "looked right at [Da Silva] and gave him a little wave, like nod of acknowledgement." Knight also heard Dause ask Da Silva to remind Barton to keep his head down. However, Barton "climbed out and then jumped up in a straight up vertical manner, which sent him straight back higher than before[,]" and then Barton hit the plane.
Da Silva had been a skydiving instructor since 1995. He would have had Barton sign a standard release form during Barton's first jump course. On Barton's penultimate jump, Da Silva saw Barton make an unsafe "hop and pop" from the Beech 99, because Barton launched himself up, and narrowly missed the tail. Da Silva warned Barton not to jump up on exit. When Barton said that he had been practicing jumping up out of the Twin Otter, Da Silva explained that the Beech 99 had a lower tail, and Barton said he understood. During Barton's last jump, Da Silva reminded Barton to keep his head down, and Barton indicated he understood. However, as Barton "squatted down, he gave it all he had. He threw it up as hard as he could[.]" Barton's method of exit caused the accident, and he would have hit the tail even had the plane been level. While Barton was in the hospital, Barton told Da Silva he did not remember the jump.
When Dause was recalled, the jury was shown what remained of the helmet video Barton recorded. Dause testified it had shown "a very extreme jump up" by Barton, but that that part of the tape had been recorded over.
The parties appear to agree that CACI No. 408, as modified to fit this case, provided as follows:
"Christian Barton claims he was harmed while participating in the sport of skydiving and that Bill Dause is responsible for that harm. To establish this claim, Christian Barton must prove all of the following:
"1. That Bill Dause acted so recklessly that his conduct was entirely outside the range of ordinary activity involved in skydiving; and
"2. That Christian Barton was harmed; and
"3. That Bill Dause's conduct was a substantial factor in causing Christian Barton's harm.
"Conduct is entirely outside the range of ordinary activity involved in the sport of skydiving if that conduct can be prohibited without discouraging vigorous participation or ...