Record v. Reason

86 Cal. Rptr. 2d 547, 73 Cal. App. 4th 472, 99 Cal. Daily Op. Serv. 5562, 1999 A.M.C. 2380, 99 Daily Journal DAR 7051, 1999 Cal. App. LEXIS 651
CourtCalifornia Court of Appeal
DecidedJuly 12, 1999
DocketB115201
StatusPublished
Cited by87 cases

This text of 86 Cal. Rptr. 2d 547 (Record v. Reason) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Record v. Reason, 86 Cal. Rptr. 2d 547, 73 Cal. App. 4th 472, 99 Cal. Daily Op. Serv. 5562, 1999 A.M.C. 2380, 99 Daily Journal DAR 7051, 1999 Cal. App. LEXIS 651 (Cal. Ct. App. 1999).

Opinions

Opinion

CURRY, J.

Appellant Michael Guy Record was injured falling off an inner tube while being towed behind a motor boat driven by respondent [475]*475Brian Reason. The trial court concluded that appellant’s claim was subject to primary assumption of risk and granted summary judgment in favor of respondent. At the same time, the court denied appellant permission to amend the complaint to assert a cause of action for reckless or intentional behavior. We affirm.

Factual and Procedural Background

On June 18, 1994, appellant accompanied respondent Brian Reason, Patrick Lynch, and Robbi Perron for a day of waterskiing and “tubing”— riding an inner tube towed by a motor boat — at Castaic Lake, using a tube owned by respondent and a motor boat jointly owned by respondent, Lynch, and Brian Heberling who was not present. During that afternoon, appellant began a tube ride while respondent was driving. Lynch and Perron were seated in the back of the boat acting as “spotters” to watch appellant and, if he fell off the tube, to notify respondent and raise a red flag to inform other boaters that someone was in the water. As respondent was turning the boat to the left, appellant spilled from the tube. He sustained a spinal injury requiring surgery and continues to suffer from head, neck, and back pain.

In April of 1995, appellant filed a complaint for personal injuries. He alleged that “[respondent] . . . while negligently operating the ski boat on Castaic Lake, swung the [appellant] who was being towed on an inner tube supplied by [respondent], causing great velocity and a whipping sensation, thereby resulting in the hereinafter stated injuries.” The complaint further alleged that “as a direct and proximate result of the negligence, carelessness, recklessness and unlawful conduct of the Defendants, and each of them,” appellant was injured and suffered medical expenses.

Respondent’s Motion for Summary Judgment

Respondent moved for summary judgment in January of 1997. In his moving papers, respondent sought to establish the following facts: “[Appellant] had preexisting injuries involving the same part of the body [appellant] claims were injured in this instant incident . . “[appellant] willingly participated in water tubing/skiing with [respondent] towing him [on the relevant day] on Castaic Lake”; “[respondent] assumed the risks inherent to water tubing/skiing including injury from falling off the innertube”; “[respondent] operated his ski boat at the time of the subject incident in a manner inherent to the sport of water tubing/skiing and within the safety guidelines of the sport of water tubing/skiing”; “[t]here was no action or factor attributed to [respondent] which falls outside the range of the ordinary activities involved in the sport of water tubing/skiing which caused and/or [476]*476contributed to [appellant’s] fall which is the subject of this lawsuit”; “[respondent] did not consumed [sz'c] any alcoholic beverages or any other substance which would have impaired his ability to safely operate his ski boat on June 18, 1994”; and “[appellant] had fallen off the innertube twice, without incident, prior to the fall which is the subject of this lawsuit.”

To establish appellant’s assumption of risk, respondent submitted the following specific evidence: appellant’s deposition testimony in which he characterized falling out of an inner tube as “[a] common occurrence”; appellant’s deposition testimony that in his experience of tubing, “[s]ome people will turn the boat rapidly to get the inner tuber to go much quicker to increase the thrill of the ride. Ajad some people would just tow behind the boat casually just for simple pleasure”; and Lynch’s deposition testimony that appellant had said, “ ‘I’ll be fine on the tube,’ ” in response to respondent’s and Lynch’s concerns about appellant riding on the tube.

In support of the facts concerning respondent’s operation of the boat within the guidelines of the sport of tubing and the range of ordinary activity inherent in the sport, respondent offered the following specific evidence: excerpts from his own deposition testimony indicating that he had no alcohol on the day he was operating the boat, that he read the safety instructions for the tube, that the boat was traveling 15 to 25 miles per hour at the time of appellant’s injury, and that he made a gradual left turn; the tube’s written instructions specifying the maximum towing speed for adult tube riders to be 25 miles per hour; evidence that Lynch and Perron served as spotters in accordance with the tube’s instructions; and appellant’s statement in his deposition testimony that respondent was towing him in the middle of the lake away from the shore.1

Appellant’s Opposition

Appellant filed an opposition to the motion for summary judgment,1 providing excerpts from depositions and declarations disputing that he had assumed the risk and that respondent’s manner of operating the boat was within the guidelines and range of activity inherent to tubing. Specifically, appellant submitted respondent’s deposition testimony showing that he knew of appellant’s previous neck injury. Appellant testified at his deposition he told respondent “to go slow and take it easy” and “[k]ick back, [be]cause I don’t want to get hurt.”

Robbi Perron testified in a declaration that at the time of the incident, the boat’s speedometer read 30 miles per hour and respondent “was making a [477]*477sharp left turn.” She estimated that the tow line was at least 70 feet long. Perron also recalled a conversation that day between respondent and Lynch on the boat about a game the two were playing where the object was “to try and knock one another off the tube using speed and momentum of the boat.” She denied that appellant had fallen off the tube twice before on the day of the incident.

Appellant had said in his deposition testimony that “when [respondent] made the three quarter turn to come around, the inner tube was ripped out from underneath me.” Also according to appellant’s deposition testimony, “[Lynch’s] exact words [after the incident] were, ‘You were going way too “F’n” fast.’ Or, ‘You were going “F’n” fast.’ He made comments that I looked like a rag doll bouncing across the water.”

Glen H. Egstrom, an expert in underwater kinesiology hired by appellant, stated in his declaration: “Pursuant to accepted standards of safety practiced within the recreational sport of tubing, it is up to the boat driver to use judgment and skill in maintaining safe boat speed and reasonable maneuvers, as well as safe towable speeds. The rider on the towable is virtually at the mercy of the boat driver since the driver can literally sling the tube out to the side of the boat by simply making a turn of the boat.”

Egstrom stated that he was “familiar with instructions for various towable devices” and that the particular instructions for the specific type tube involved in the accident provided, “ ‘Never exceed 25 mph when towing adults or 15 mph when tov/ing children.’ ” He believed that “[mjost towable inflatable tubes in the last ten years have carried the recommendations to keep speeds under 20 mph., use a 50-foot tow line and to avoid slingshot type maneuvers that produce high speeds.”2

Egstrom also observed: “The rider of the towable device is exposed to significant amounts of centrifugal force during any boat turn which slings the towable outside the wake of the boat.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Solis v. Lauderdale CA4/3
California Court of Appeal, 2025
Holguin Family Ventures v. County of Ventura
California Court of Appeal, 2024
Vardanyan v. VJ's Touch Beauty Salon CA2/3
California Court of Appeal, 2024
McCluskey v. Hendricks CA2/2
California Court of Appeal, 2023
Napitupulu v. Mad Science Laboratories CA2/1
California Court of Appeal, 2023
Doe v. Sutherland Healthcare Solutions CA2/7
California Court of Appeal, 2021
Harmon v. DiRubio CA4/3
California Court of Appeal, 2021
Keshen v. Buffington CA4/3
California Court of Appeal, 2021
Plath v. Palo Mar Stables CA1/2
California Court of Appeal, 2020
McAlpine v. Norman
California Court of Appeal, 2020
Payton v. CSI Electrical Contractors
California Court of Appeal, 2018
Leyva v. Garcia
California Court of Appeal, 2018
Foltz v. Johnson
California Court of Appeal, 2017
Grotheer v. Escape Adventures
California Court of Appeal, 2017
Brian Pellham v. Let's Go Tubing, Inc.
398 P.3d 1205 (Court of Appeals of Washington, 2017)
Whitelaw v. Holtzman CA2/2
California Court of Appeal, 2016

Cite This Page — Counsel Stack

Bluebook (online)
86 Cal. Rptr. 2d 547, 73 Cal. App. 4th 472, 99 Cal. Daily Op. Serv. 5562, 1999 A.M.C. 2380, 99 Daily Journal DAR 7051, 1999 Cal. App. LEXIS 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/record-v-reason-calctapp-1999.