HomeMy WebLinkAbout2007-01-16; City Council; 18868; Reporting Out Terms:RivkinCITY OF CARLSBAD - AGENDA BILL
AB# 18,868
MTG. 1/16/07
DEPT. CA
REPORTING OUT THE TERMS AND
f*/t Afm^rt^%&f c* f\f futm mt A t it iF\r*iMttktTCONDITIONS OF Trie FINAL JUDGMENT
IN JONATHAN RIVKIN V. CITY OF
CARLSBAD. ETAL. GIN034061
DEPT. HEAD
CITY ATTY. rf&>
CITYMGR. -jjfo
RECOMMENDED ACTION:
There is no action the Council needs to take.
ITEM EXPLANATION:
Mr. Rivkin sued the City, La Costa Youth Organization and San Diego School of Baseball for
injuring himself when he slipped on the wet grass at a March 1, 2003 softball fair/exhibition.
Dr. Rivkin's theory of liability against the City was that the grass area adjacent to the parking lot
in Stagecoach Park was in a dangerous condition. The City disagreed arguing that it was Or.
Rivkin's activities, not the condition of the grass, that caused the accident. A superior court
agreed with the City and dismissed the case. Dr. Rivkin unsuccessfully moved for a new trial,
filed an appeal and eventually petitioned the California Supreme Court for review. On
December 19, 2006 the case became final. A copy of the final judgment is attached as Exhibit
'A'.
FISCAL IMPACT:
The City will recover its costs incurred throughout this litigation.
EXHIBITS:
1. Remittitur
2. Minute Order After Law and Motion Hearing
DEPARTMENT CONTACT: Ron Ball 760-434-2891 rball@ci.carlsbad.ca.us
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
D
D
D
D
CONTINUED TO DATE SPECIFIC D
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF D
OTHER - SEE MINUTES D
Council received the report.
) D
COURT OF APPEAL -..STATE OF CALIFORNIA ,
/ %J^\ \ i~^ IT \FOURTH APPELLATE DISTRICT '
Division One
San Diego County Superior Court
P.O. Box 120128
San Diego, CA 92112-0128
RE: JONATHAN RIVKINetal.,
Plaintiffs and Appellants,
v.
CITY OF CARLSBAD et al.,
Defendants and Respondents.
D046319
San Diego County No. GIN034061
* * * REMITTITUR * * *
I, Stephen M. Kelly, Clerk of the Court of Appeal of the State of California, for the Fourth
Appellate District, certify the attached is a true and correct copy of the original opinion or decision
entered in the above-entitled case on September 18, 2006, and that this opinion or decision has now
become final.
Appellant Respondent to recover costs.
Each party to bear own costs.
Costs are not awarded in this proceeding.
^Other (See Below)
The defendants are entitled to costs on appeal.
Witness my hand and the seal of the Court affixed this DEC 19 2006
cc: All Parties (Copy of remittitur only, Cal. Rules of Court,
AFFIDAVIT OF TRANSMITTAL
I am a citizen of the United States, over 18 years of age, and not a party to thei wftHin action; ffiat my
business address is 750 B Street, Suite 300, San Diego, CA 92101; that I served a copy of the attached
material in envelopes addressed to those persons noted below.
That said envelopes were sealed and shipping fees fully paid thereon, and thereafter were sent as indicated
via the U.S. Postal System from San Diego, CA 92101.
I certify under penalty of perjury that the foregoing is true and correct.
Stephen M. Kelly, Clerk of thafcourt
^f^/^T^ DEC 1 9 2006
Deputy Cle(k /7 Date
CASE NUMBER: D046319
Office of the Clerk
San Diego County Superior Court
P.O. Box 120128
San Diego, CA 92112-0128
Material Sent YES:
Paul R. Kennerson
Kennerson & Grant
101 West Broadway, Suite 1150
San Diego, CA 92101
Material Sent YES:
Daniel U. Smith
21 RancheriaRd.
P.O. Box 278
Kentfield, CA 94914
Material Sent YES:
Mitchell D. Dean
Daley & Heft
462 Stevens Avenue, Suite 201
Solana Beach, CA 92075
Material Sent YES:
Office Of The City Attorney
Ronald R. Ball
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
Material Sent YES:
John D. Klinedinst
Klinedinst PC
501 West Broadway, Suite 600
San Diego, CA 92101
Material Sent YES:
Gary Dale Britton
Klinedinst PC
Material Sent YES:
501 W Broadway #600
San Diego, CA 92101
Steven Michael O'Neal Material Sent YES:
2044 First Avenue, Suite 200
San Diego, CA 92101
SUPERIOR COURT OF CALIFORNIA
County of San Diego
DATE: January 13, 2005 DEPT. 29 REPORTER A: Not reported. CSR
PRESENT HON. MICHAELM. ANELLO REPORTERS: CSR#
JUDGE
CLERK: Sharon Kush
BAILIFF: REPORTER'S ADDRESS: P.O. BOX 128
SAN DIEGO, CA 92112-4104
GIN034061 JONATHAN RJVKIN, an individual; Attorney: Paul Kennerson
SHELLY RIVKIN, an individual;
Plaintiffs,
vs.
THE CITY OF CARLSBAD; Attorney: Mitchell D. Dean
LA COSTA YOUTH ORGANIZATION,
a California Corporation; Attorney: Steven M. O'Neal
SAN DIEGO SCHOOL OF BASEBALL,
a California Corporation; and Attorney: Chris G. Garber
DOES 1 through 25, inclusive,
Defendants,
AND RELATED CROSS ACTIONS.
MINUTE ORDER AFTER LAW AND MOTION HEARING
THE MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANTS SAN DIEGO SCHOOL
OF BASEBALL, INC., LA COSTA YOUTH ORGANIZATION, AND CITY OF CARLSBAD
ARE GRANTED. THE DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK IS A
COMPLETE BAR TO RECOVERY.
LEGIONS OF CASES HAVE DESCRIBED THE DOCTRINE OF ASSUMPTION OF
RISK. AN EXAMPLE:
[ASSUMPTION OF RISK IS OF TWO TYPES, PRIMARY AND
SECONDARY. SECONDARY ASSUMPTION OF RISK IS THE
continued
EXHIBIT
GIN034061
Rivkin v. City of Carlsbad et al.
January 13. 2005 - Page Two of Eight
TRADITIONAL VARIETY WHERE A DEFENDANT BREACHES A DUTY
OF CARE OWED TO THE PLAINTIFF BUT THE PLAINTIFF
NEVERTHELESS KNOWINGLY ENCOUNTERS THE RISK CREATED BY
THE BREACH. SECONDARY ASSUMPTION OF RISK IS NOT A BAR
TO RECOVERY, BUT REQUIRES THE APPLICATION OF
COMPARATIVE FAULT PRINCIPLES.
PRIMARY ASSUMPTION OF RISK OCCURS WHERE A PLAINTIFF
VOLUNTARILY PARTICIPATES IN A SPORTING EVENT OR
ACTIVITY INVOLVING CERTAIN INHERENT RISKS. FOR EXAMPLE,
AN ERRANTLY THROWN BALL IN BASEBALL OR A CARELESSLY
EXTENDED ELBOW IN BASKETBALL ARE CONSIDERED INHERENT
RISKS OF THOSE RESPECTIVE SPORTS. PRIMARY ASSUMPTION OF
RISK IS A COMPLETE BAR TO RECOVERY.
PRIMARY ASSUMPTION OF RISK IS MERELY ANOTHER WAY OF
SAYING NO DUTY OF CARE IS OWED AS TO RISKS INHERENT IN
A GIVEN SPORT OR ACTIVITY. THE OVERRIDING CONSIDERATION
IN THE APPLICATION OF THIS PRINCIPLE IS TO AVOID
IMPOSING A DUTY WHICH MIGHT CHILL VIGOROUS
PARTICIPATION IN THE SPORT AND THEREBY ALTER ITS
FUNDAMENTAL NATURE.
WATTENBARGER V. CINCINNATI REDS, INC. (1994) 28 CAL.APP.4TH 746, 751-
752 (CITING KNIGHT V. JEWETT (1992) 3 CAL.4TH 296). ,« [DJEFENDANTS
HAVE NO DUTY TO PROTECT PLAINTIFFS AGAINST RISKS INHERENT IN AN ACTIVE
SPORT." STIMSON V. CARLSON (1992) 11 CAL.APP.4TH 1201, 1206. "[A]N
ACTIVITY FALLS WITHIN THE MEANING OF 'SPORT' IF THE ACTIVITY IS DONE
FOR ENJOYMENT OR THRILL, REQUIRES PHYSICAL EXERTION AS WELL AS
ELEMENTS OF SKILL, AND INVOLVES A CHALLENGE CONTAINING A POTENTIAL
RISK OF INJURY." BJORK V. MASON (2000) 77 CAL.APP.4TH 544, 550.
IN THIS CASE, PLAINTIFF ALLEGES HE WAS PITCHING A BASEBALL ON A
WET, GRASSY "HILLOCK" WHEN HE WAS INJURED. THIS SORT OF PITCHING
ACTIVITY IS CERTAINLY DONE FOR ENJOYMENT, REQUIRES PHYSICAL EXERTION
AND ELEMENTS OF SKILL, AND INVOLVES A CHALLENGE CONTAINING A POTENTIAL
RISK OF INJURY (E.G., TO THE ARM OR LEG IF THE PITCH IS NOT THROWN
PROPERLY OR IF THE LEG DOES NOT PLANT PROPERLY DURING DELIVERY) . AS
SUCH, A SPORT IS INVOLVED. THE RISK OF INJURING A LIMB DURING A
continued
GIN034061
Rivkin v. City of Carlsbad et al.
January 13. 2005 - Page Three of Eight
PITCHING MOTION IS ALSO AN INHERENT RISK OF THE SPORT. AS SUCH, THE
PRIMARY-ASSUMPTION-OF-THE-RISK DOCTRINE IS APPLICABLE.
AS TO WHETHER PLAINTIFF WAS PARTICIPATING IN A "SPORT,"
PLAINTIFFS ARGUE THAT THE NATURE OF THE ACTIVITY AT ISSUE WAS NOT A
"SPORT." THEY ARGUE THAT THERE WERE NO TEAMS AND NO UNIFORMS. THEY
ARGUE THAT PLAINTIFF WAS NOT PITCHING TO A BATTER. THEY ARGUE THAT
PLAINTIFF WAS NOT STANDING ON A PITCHING MOUND, WHICH THEY ARGUE IS
TYPICALLY COMPOSED OF DIRT AND GRAVEL. THEY ARGUE, "TO ACCEPT
DEFENDANTS' POSITION, ONE WOULD HAVE TO CONCLUDE THAT SHOOTING BASKETS
AT THE COUNTY FAIR TO WIN A PRIZE IS 'COMPETITIVE BASKETBALL' SUCH AS
TO RELIEVE THE EXHIBITOR FROM ALL RESPONSIBILITY FOR THE SAFETY OF THE
PREMISES." OPPOSITION AT 5:15-20. THESE ARGUMENTS ARE WITHOUT MERIT.
CERTAINLY, TEAMS AND UNIFORMS ARE INVOLVED IN AN ORGANIZED GAME OF
BASEBALL. BUT TEAMS AND UNIFORMS ARE NOT REQUIRED TO FIND THAT
PLAINTIFF WAS PARTICIPATING IN A "SPORT." THE FACT THAT PLAINTIFF WAS
NOT PITCHING TO A BATTER IS ALSO IRRELEVANT TO THE ISSUE OF WHETHER
PLAINTIFF WAS ENGAGED IN AN ACTIVITY FOR "ENJOYMENT OR THRILL, [WHICH]
REQUIRES PHYSICAL EXERTION AS WELL AS ELEMENTS OF SKILL, AND INVOLVES
A CHALLENGE CONTAINING A POTENTIAL RISK OF INJURY." THIS IS HOW
"SPORT" IS DEFINED. AND, IN THE COURT'S VIEW AND CONTRARY TO
PLAINTIFFS' ARGUMENT, THE BASKETBALL "EXHIBITOR" AT A COUNTY FAIR
LIKELY WOULD BE RELIEVED OF RESPONSIBILITY FOR ARM OR LEG INJURIES
SUFFERED BY THOSE SHOOTING BASKETS.
PLAINTIFFS CONCEDE IN THEIR PAPERS THAT "A PARTICIPANT IN A
COMPETITIVE GAME OF BASEBALL ASSUMES THE RISK OF THOSE INJURIES INHERENT
IN THE GAME, INCLUDING KNEE INJURIES FROM VARIOUS CAUSES." OPPOSITION AT
7:5-7. THEY ARGUE INSTEAD THAT PLAINTIFF WAS NOT PARTICIPATING IN A
BASEBALL GAME AND THEREFORE DID NOT ASSUME ITS INHERENT RISKS. BUT
PLAINTIFF WAS PARTICIPATING IN THE ACTIVITY OF PITCHING AND THEREFORE
ASSUMED THE RISKS INHERENT TO PITCHERS, WHETHER OR NOT A BASEBALL GAME
WAS BEING PLAYED.
PLAINTIFFS ARGUE THAT, IN BASEBALL GAMES, PITCHERS STAND ON A
PITCHING MOUND MADE OF DIRT, GRAVEL OR SAND TO PROVIDE FIRM FOOTING.
THEY ARGUE THAT BASEBALL, UNLIKE OTHER SPORTS SUCH AS FOOTBALL, IS NOT
PLAYED IN THE RAIN, AND DURING RAIN DELAYS TARPAULINS ARE PLACED ON
THE FIELD TO KEEP IT DRY. THEY ARGUE: "DURING THE COMPETITIVE GAME
OF BASEBALL, TWO TEAMS OF AT LEAST 11 [SIC] PLAYERS PARTICIPATE,
continued
7
GIN034061
Rivkin v. City of Carlsbad et al.
January 13.2005 - Page Four of Eight
WEARING GLOVES, HELMETS (WHILE BATTING AND BASE RUNNING) , AND CLEATED
SHOES. INNINGS ARE PLAYED AND SCORES ARE KEPT. NONE OF THESE
DEFINING BASEBALL GAME FACTORS WERE PRESENT IN THE ACTIVITY ENGAGED IN
BY PLAINTIFF." OPPOSITION AT 6:25-7:2. THIS ARGUMENT IS WITHOUT
MERIT. IT IS NOT NECESSARY FOR ALL OF THESE FACTORS TO BE PRESENT FOR
A "SPORT" TO BE INVOLVED. AS NOTED ABOVE, ALL THAT IS NECESSARY IS AN
ACTIVITY DONE FOR ENJOYMENT WHICH REQUIRES SKILL, PHYSICAL EXERTION,
AND A CHALLENGE CONTAINING A POTENTIAL RISK OF INJURY. GLOVES,
HELMETS, CLEATED SHOES, TARPAULINS, AND SCOREKEEPING ARE NOT REQUIRED.
PLAINTIFFS ARGUE THAT FORD V. GOUIN (1992) 3 CAL. 4TH 339 EXPANDED
THE ASSUMPTION-OF-THE-RISK DOCTRINE TO NON-COMPETITIVE SPORTS DUE TO
POSSIBLE "CHILLING EFFECTS" THAT THE IMPOSITION OF LIABILITY WOULD
HAVE ON THE SPORT. SEE ID. AT 345:
AS NOTED IN KNIGHT, THE DECISIONS THAT HAVE
RECOGNIZED THE EXISTENCE OF ONLY A LIMITED DUTY OF
CARE IN A SPORTS SITUATION GENERALLY HAVE REASONED
THAT VIGOROUS PARTICIPATION IN THE SPORT LIKELY
WOULD BE CHILLED, AND, AS A RESULT, THE NATURE OF
THE SPORT LIKELY WOULD BE ALTERED, IN THE EVENT
LEGAL LIABILITY WERE TO BE IMPOSED ON A SPORTS
PARTICIPANT FOR ORDINARY CARELESS CONDUCT. THIS
REASONING APPLIES TO WATERSKIING. EVEN WHEN A
WATER-SKIER IS NOT INVOLVED IN A "COMPETITIVE"
EVENT, THE SKIER HAS UNDERTAKEN VIGOROUS, ATHLETIC
ACTIVITY, AND THE SKI BOAT DRIVER OPERATES THE
BOAT IN A MANNER THAT IS CONSISTENT WITH, AND
ENHANCES, THE EXCITEMENT AND CHALLENGE OF THE
ACTIVE CONDUCT OF THE SPORT. IMPOSITION OF LEGAL
LIABILITY ON A SKI BOAT DRIVER FOR ORDINARY
NEGLIGENCE IN MAKING TOO SHARP A TURN, FOR
EXAMPLE, OR IN PULLING THE SKIER TOO RAPIDLY OR
TOO.SLOWLY, LIKELY WOULD HAVE THE SAME KIND OF
UNDESIRABLE CHILLING EFFECT ON THE DRIVER'S
CONDUCT THAT THE COURTS IN OTHER CASES FEARED
WOULD INHIBIT ORDINARY CONDUCT IN VARIOUS SPORTS.
AS A RESULT, HOLDING SKI BOAT DRIVERS LIABLE FOR
THEIR ORDINARY NEGLIGENCE MIGHT WELL HAVE A
GENERALLY DELETERIOUS EFFECT ON THE NATURE OF THE
continued
GIN034061
Rivkin v. City of Carlsbad et al.
January 13. 2005 - Page Five of Eight
SPORT OF WATERSKIING AS A WHOLE. ADDITIONALLY,
IMPOSING SUCH LIABILITY MIGHT WELL DETER FRIENDS
FROM VOLUNTARILY ASSISTING ONE ANOTHER IN SUCH
POTENTIALLY RISKY SPORTS. ACCORDINGLY, THE GENERAL
RULE LIMITING THE DUTY OF CARE OF A COPARTICIPANT
IN ACTIVE SPORTS TO THE AVOIDANCE OF INTENTIONAL
AND RECKLESS MISCONDUCT, APPLIES TO PARTICIPANTS
ENGAGED IN NONCOMPETITIVE BUT ACTIVE SPORTS
ACTIVITY, SUCH AS A SKI BOAT DRIVER TOWING A
WATER-SKIER. UNDER THE PRINCIPLES SET FORTH IN
KNIGHT, SUMMARY JUDGMENT IN FAVOR OF DEFENDANT WAS
PROPERLY ENTERED.
PLAINTIFFS ARGUE THAT NO "CHILLING EFFECT" WOULD OCCUR IF PITCHING
BOOTH OPERATORS WERE REQUIRED TO ENSURE THE SAFETY OF PARTICIPANTS AND
THEREFORE THAT THE DOCTRINE SHOULD NOT APPLY. HOWEVER, IMPOSING
LIABILITY IN A CASE LIKE THIS ONE ON PITCHING BOOTH OPERATORS, "FAIR"
ORGANIZERS, OR LANDOWNERS WOULD REQUIRE THE OPERATORS, ORGANIZERS, AND
LANDOWNERS TO ENSURE PERFECT WEATHER AND SOIL CONDITIONS. THAT IS, NO
ACTIVITY COULD TAKE PLACE IF THERE WERE MIST IN THE AIR OR DEW ON THE
GROUND OR WHERE THERE WAS ANY ADVERSE WEATHER OR SOIL CONDITION ON
WHICH A PARTY MIGHT SLIP WHILE PITCHING. A PARK OWNER WOULD HAVE TO
CLOSE THE PARK IN ANY ADVERSE WEATHER CONDITION, TO ENSURE THAT NO ONE
THROWING A BALL SLIPS IF THE GRASS IS WET. AN EXHIBIT ORGANIZER OR
BOOTH OPERATOR WOULD HAVE TO ENSURE THAT THERE WERE NO WET SOIL OR
GRASS, GRAVEL, ROCKS, LEAVES OR ANY OTHER SORT OF CONDITION ON WHICH A
PITCHER COULD SLIP OR TRIP. PARTICIPATION IN SIMULATED BALL GAMES AND
PARTICIPATION BY tTHILDREN OR ADULTS EVEN IN GAMES OF CATCH ON OTHERS'
PROPERTY WOULD BE COMPLETELY CHILLED. THE DOCTRINE IS THEREFORE
APPLICABLE.
PLAINTIFFS ARGUE THAT DEFENDANTS ARE LIABLE BECAUSE THEY
INCREASED THE RISK OF HARM ABOVE THAT INHERENT IN THE SPORT.
"ALTHOUGH DEFENDANTS GENERALLY HAVE NO LEGAL DUTY TO ELIMINATE (OR
PROTECT A PLAINTIFF AGAINST) RISKS INHERENT IN THE SPORT ITSELF, IT IS
WELL ESTABLISHED THAT DEFENDANTS GENERALLY DO HAVE A DUTY TO USE DUE
CARE NOT TO INCREASE THE RISKS TO A PARTICIPANT OVER AND ABOVE THOSE
INHERENT IN THE SPORT." KNIGHT, SUPRA, AT 315-316. PLAINTIFFS ARGUE
THAT DEFENDANTS INCREASED THE RISK OF THE SPORT BY SETTING UP THE
SIMULATED PITCHING MOUND ON SLOPING, WET GRASS. THEY ARGUE: "BY
continued
GIN034061
Rivkin v. City of Carlsbad et al.
January 13, 2005 - Page Six of Eight
SETTING UP THEIR BOOTH ON THE WET GRASS AND ENCOURAGING PARTICIPANTS
TO PITCH BASEBALLS AS HARD AS POSSIBLE ON A DOWNWARD SLOPE,"
DEFENDANTS INCREASED THE RISK INHERENT IN PITCHING A BASEBALL.
HOWEVER, PLAINTIFF STATED IN HIS DEPOSITION TESTIMONY THAT HE SELECTED
THE POINT FROM WHICH HE WOULD THROW THE BALL. SEE EXHIBIT
B/PLAINTIFF'S DEPOSITION AT 89:15-18 ("Q: I SAID: WHEN YOU WENT OUT
TO STAND TO THROW THE BALL, YOU SELECTED WHERE YOU WERE GOING TO
STAND. CORRECT? A: YES."). EXHIBIT 3 IS A PHOTOGRAPH SHOWING THE
AREA OF THE PARK WHERE THE EXHIBIT WAS SET UP. IT APPEARS FROM THE
PHOTOGRAPH THAT PLAINTIFF COULD HAVE PITCHED FROM A FLAT SPOT, RATHER
THAN FROM THE "HILLOCK" WHICH HE CHOSE. THUS, THE EVIDENCE INDICATES
THAT PLAINTIFF HIMSELF MAY HAVE INCREASED THE RISK BY CHOOSING TO
"PITCH A BASEBALL AS HARD AS POSSIBLE ON A DOWNWARD SLOPE." THE
EVIDENCE DOES NOT INDICATE THAT DEFENDANTS ENGAGED IN ANY CONDUCT THAT
INCREASED THE RISK.
PLAINTIFFS COMPARE THEIR CASE TO BRANCO V. KEARNY MOTO PARK, INC.
(1995) 37 CAL.APP.4TH 184. IN THAT CASE, THE COURT OF APPEAL FOUND
THAT SUMMARY JUDGMENT WAS IMPROPERLY GRANTED, BECAUSE THERE WAS A
TRIABLE ISSUE OF FACT AS TO WHETHER THE DESIGN OF A MOTOCROSS RACE
COURSE INCREASED THE RISK INHERENT IN THE SPORT. THE COURT FOUND
THAT, "BY ITS NATURE, BMX RACING INCLUDES BUMPS, JUMPS, TURNS,
STRAIGHTAWAYS AND OBSTACLES," BUT ALSO FOUND THERE WAS A DUTY "TO
REFRAIN FROM UTILIZING BMX JUMPS WHICH BY DESIGN POSE AN EXTREME RISK
OF INJURY." THE COURT EXPLAINED:
IT IS NOT UNREASONABLE TO EXPECT A BMX COURSE TO
REFRAIN FROM UTILIZING JUMPS WHICH BY DESIGN
CREATE AN EXTREME RISK OF INJURY. CERTAINLY THE
JUMPS, AND FALLS, ARE INHERENT TO THE SPORT, AND
UNDER THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK,
THERE IS NO DUTY TO ELIMINATE THE JUMPS ENTIRELY,
AND NO DUTY TO PROTECT FROM INJURY ARISING FROM
REASONABLY DESIGNED JUMPS. HOWEVER, THE SPORT DOES
NOT INHERENTLY REQUIRE JUMPS WHICH ARE DESIGNED IN
SUCH A WAY AS TO CREATE AN EXTREME RISK OF INJURY.
ACCORDINGLY, PREMISED ON THE DUTY NOT TO UTILIZE
DANGEROUSLY DESIGNED JUMPS, THIS CASE FALLS UNDER
THE SECONDARY ASSUMPTION OF RISK CATEGORY, AND
ISSUES PERTAINING TO BRANCO'S COMPARATIVE FAULT
continued
GIN034061
Rivkin v. City of Carlsbad et al.
January 13.2005 - Page Seven of Eight
ARE FOR THE TRIER OF FACT TO DECIDE. BRANCO'S
EXPERT'S OPINIONS REGARDING THE DESIGN OF THE JUMP
CREATE A TRIABLE ISSUE OF MATERIAL FACT WHETHER
THE MILLION DOLLAR JUMP WAS DESIGNED IN SUCH A WAY
AS TO CREATE AN EXTREME RISK OF INJURY.
ID. AT 193. IN THIS CASE, HOWEVER, THERE IS NO EVIDENCE TO SHOW THAT
DEFENDANTS "DESIGNED" THE EXHIBIT IN A WAY THAT WOULD INCREASE THE
RISK OF INJURY. PLAINTIFF CHOSE THE SPOT FROM WHICH HE WOULD THROW.
HE WAS NOT REQUIRED BY DEFENDANTS OR BY THE "DESIGN" OF THEIR EXHIBIT
TO THROW FROM THE "HILLOCK" AS OPPOSED TO THE FLAT SPACE. PLAINTIFFS
ARGUE THAT THERE WAS NO OTHER SPOT FROM WHICH PLAINTIFF COULD HAVE
THROWN THE BASEBALL. THIS ARGUMENT IS NOT SUPPORTED BY EVIDENCE
SHOWING THE BASEBALL HAD TO BE THROWN FROM THE SPOT SELECTED BY
PLAINTIFF.
PLAINTIFFS AND DEFENDANTS ALSO SPEND TIME ARGUING ABOUT WHETHER
DEFENDANTS HAD A DUTY TO WARN PLAINTIFFS OF THE WET GRASS. DEFENDANTS
ARGUE THEY HAD NO DUTY TO WARN OF AN OBVIOUS "DANGER." PLAINTIFFS
ARGUE THAT DEFENDANTS HAD AN OBLIGATION TO DISCOVER UNSAFE CONDITIONS
AND REMEDY THOSE CONDITIONS. HOWEVER, AS NOTED ABOVE, "PRIMARY
ASSUMPTION OF RISK IS MERELY ANOTHER WAY OF SAYING NO DUTY OF CARE IS
OWED AS TO RISKS INHERENT IN A GIVEN SPORT OR ACTIVITY." BECAUSE THE
RISK OF A KNEE INJURY IS INHERENT IN THE ACTIVITY OF PITCHING,
DEFENDANTS OWED NO DUTY OF CARE TO PLAINTIFF, INCLUDING A DUTY TO
WARN. THE ASSUMPTION-OF-THE-RISK DOCTRINE IS A COMPLETE DEFENSE TO
PLAINTIFFS' CLAIMS .
THE COURT DECLINES TO RULE ON THE PARTIES' EVIDENTIARY OBJECTIONS,
IN LIGHT OF THE FACT THAT THE COURT, IN RULING ON THIS MATTER, HAS NOT
RELIED ON THE EVIDENCE TO WHICH THOSE OBJECTIONS REFER.
BECAUSE THE MOTION FOR SUMMARY JUDGMENT SHALL BE GRANTED AS TO
PLAINTIFF JONATHAN RIVKIN ON ASSUMPTION OF THE RISK GROUNDS, PLAINTIFF
SHELLY RIVKIN'S DERIVATIVE CLAIMS FOR NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS AND LOSS OF CONSORTIUM ALSO FAIL. THE THREE MOTIONS
FOR SUMMARY JUDGMENT ARE GRANTED IN THEIR ENTIRETY.
PLAINTIFFS' OBJECTIONS TO THE LATE FILING OF CERTAIN REPLIES ARE
OVERRULED.
continued - - - -
GIN034061
Rivkin v. City of Carlsbad et al.
January 13.2005 - Page Eight of Eight
THIS RULING DISPOSES OF PLAINTIFFS' ACTION AS TO ALL NAMED
DEFENDANTS. ALL FUTURE DATES ARE HEREBY VACATED. DEFENDANTS SHALL
SUBMIT ONE JUDGMENT WITHIN 20 DAYS OF THE DATE OF THIS RULING.
IT IS SO ORDERED.
Date: January 13, 2005 ^j»r>H^gi y ANELLQ
MICHAEL M.ANELLO
Judge of the Superior Court