Metropolitan News-Enterprise


Wednesday, November 7, 2007


Page 1


Sixth District Court of Appeal Rules:

Assumption of Risk Applies to Passenger in Personal Watercraft




The primary assumption of risk doctrine applies to an action for injuries suffered by a passenger as a result of a collision between personal watercraft, the Sixth District Court of Appeal has ruled.

The court Monday affirmed a Santa Clara Superior Court judge’s award of summary judgment to the defendants in a wrongful death action resulting from a June 2003 accident at Coyote Lake in Gilroy.

Rachael Truong was killed when a 1995 Polaris SLX owned and operated by her friend Anthony Nguyen collided with a 2003 Yamaha WaveRunner GP1300R operated by Cu Van Nguyen and owned by his son, Chuong Nguyen. Anthony Nguyen is not related to Cu Van Nguyen and Chuong Nguyen.

Discovery indicated that Anthony Nguyen was traveling between five and 10 miles per hour and Cu Van Nguyen at about 25 mph. Cu Van Nguyen declared that Anthony Nguyen violated the posted traffic pattern.

A park ranger investigated the accident and concluded that Truong was injured when the Yamaha rode up over the starboard stern of the Polaris and impacted her torso, forcing her into the steering column.

Summary Judgment

Truong’s parents sued the owners and operators of both craft. Judge Kevin McKenney ruled that Cu Van Nguyen was not liable because primary assumption of risk applied and was a complete defense, and that Chuong Nguyen was not liable for negligent entrustment.

Anthony Nguyen did not file an answer until after summary judgment was granted to the other defendants and was not a party to the appeal.

Justice Richard McAdams, writing for the Court of Appeal, said the trial judge was correct.

Under the primary assumption of risk doctrine, a participant in an inherently dangerous recreational activity assumes the risk of his own conduct and is not owed a duty of protection by fellow participants. That applies equally to the operator and passenger of a personal watercraft, McAdams said.

The justice cited Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, which applied the doctrine to Kawasaki’s “jet ski.” At the time, a jet ski was a stand-up version of a personal watercraft, but Kawasaki now applies the name to its three-person sit-down watercraft.

The use of personal watercraft, whether of the stand-up or sit-down variety, is an activity presenting a significant risk of injury, as the Court of Appeal found with respect to a Bombardier Sea-Doo, which comes in two- and three-seat models, in Peart v. Ferro (2004) 119 Cal.App.4th 60, McAdams said.

The justice distinguished Shannon v. Rhodes (2001) 92 Cal.App.4th 792, in which the court declined to apply the doctrine to a passenger injured in a fall from a ski boat when the operator unexpectedly accelerated. “In contrast to riding on a boat, riding on a personal watercraft requires physical exertion and skill, and the potential risk of injury is significantly greater,” McAdams wrote.

He also rejected the contention, based on an Indiana appellate case that declined to follow Peart, that a distinction should be made between “extreme”—as in tournaments, exhibitions, competitions, races, or parades—use of personal watercraft and mere “casual” use.

Little Value

The case is of little persuasive value, McAdams said, because Indiana’s comparative fault system is different than California’s—among other things, a plaintiff who is more than 50 percent negligent collects nothing—the Indiana case was based on a statute whose enactment preceded that state’s recognition of the primary assumption of risk doctrine, and Indiana limits application of the doctrine to “organized” recreational activities.

As for the negligent entrustment claim against the owner of the watercraft, McAdams said, it necessarily fails because the operator owed no duty of safe operation to the decedent.

Justice Wendy Clark Duffy concurred in the opinion, while Justice Nathan Mihara concurred separately.

Mihara reasoned that a personal watercraft passenger is a participant in the activity because the craft “has no hull or cabin, thus bringing the passenger into close contact with the elements,” “[t]he passenger also experiences the effects of high speed and quick turns, and will get some lift off the seat when the vessel encounters a wave,” and the passenger must exercise “[p]hysical exertion and skill is also required of a passenger.”

The case is Truong v. Nguyen, 07 S.O.S. 6551.


Copyright 2007, Metropolitan News Company