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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 COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Council received the report.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