Case Number: BC516240    Hearing Date: September 16, 2014    Dept: 91

The Motion for Summary Judgment by Defendants, P.I.M. Inc., David Serianne and Scott Floman, filed on 6/27/14 is DENIED. Defendants have not met their burden of establishing that primary assumption of the risk applies to bar Plaintiff’s claim based on the material facts proffered, which are in dispute. Cal Code Civ Procedure § 437c(p)(2).

The motion is based on the 17th affirmative defense of primary assumption of the risk. Where the motion is based on an affirmative defense, “the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense’ . . . . If the defendant does not meet this burden, the motion must be denied.” Consumer Cause v. Smilecare, 91 Cal. App. 4th 454, 467 468 (Cal. App. 2d Dist.2001).

The doctrine of “primary assumption of the risk” applies where Defendant owes no duty to protect the Plaintiff from the particular risk of harm inherent in the activity. The doctrine acts as a complete bar to Plaintiff’s complaint. Knight v. Jewett, 3 Cal.4th 296, 315-316 (Cal. 1992).

Defendant’s argument rests on the contention that Plaintiff fell because she made contact with another player in pursuit of the puck. Defendant argues that falling is a risk inherent in the sport. That contention is not supported by the material facts proffered, which are in dispute.

The parties dispute whether a hazardous condition existed on the “boards” of the ice center. Plaintiff’s evidence supports that the boards and kick plates were in a poor condition at the time of the incident (April 2012) and were uneven. Facts 8 and 9 are disputed based on PSS 1-3 and 15 and evidence cited therein.

Defendant’s reply contends that Plaintiff’s photographs of kickplates taken three weeks after the incident does not create an inference that the kickplates caused the accident. However, Plaintiff also relies on the deposition testimony of Mr. Crovo and Mr. Appley, both of whom viewed the photographs and concurred they accurately depicted the condition of the kickplates at the time of the incident. See PSS 2, and evidence cited by Plaintiff.

Plaintiff testified that she came into contact with the board at the same time she felt her left skate get caught. Plaintiff’s Ex. B, 62:18-22. See also, PSS 15 and evidence cited. The cause of Plaintiff’s fall remains a triable issue.

It is disputed whether Plaintiff made contact with another player (Pokawatana) prior to falling. Pokawatana testified that they did not make contact. Fact 10 is disputed.

Plaintiff does not dispute that falling when two people are going after a puck is a normal part of the sport. Plaintiff disputes that this is what happened. Fact 11 is disputed to the extent it implies that Plaintiff fell in pursuit of the puck, which is disputed by Plaintiff’s additional facts pertaining to the cause of her fall. See Plaintiff’s Ex B,62:18-22. Evidence cited in opposition to Fact 17, PSS 14 and 15 and evidence cited.

The parties dispute where Plaintiff was when she fell. Defendant claims she was six feet from the boards; Plaintiff testified she was “very close to the boards.” Fact 13 is disputed.

Fact 17 is disputed. Plaintiff testified that her left skate got caught in something “simultaneously” when she came into contact with the boards. Defendant relies on a portion of the testimony that was later clarified after more specific questions were asked. Plaintiff’s Ex B, 62:18-22.

Even if falling is a risk inherent in the sport, Defendant still owes a duty to not increase the risk of harm “over and above those inherent in the sport.” A plaintiff does not assume the risk of the Defendant’s negligence. Knight v. Jewett, 3 Cal. 4th 296, 315-316 (Cal. 1992). The evidence proffered by Plaintiff in opposition to Defendant’s material facts cited above infer that Defendant increased the risk of harm by poor maintenance of the boards and kick plates, and further that Plaintiff fell when she simultaneously came in contact with the boards. PSS 14 and 15 and evidence cited therein.

Plaintiff’s evidentiary objection is overruled.

Defendant’s evidentiary objections are defective as they fail to comply with Cal Rules of Court 3.1354, which requires Defendant to “[q]uote or set forth the objectionable statement or material.”
Notwithstanding the foregoing the court rules as follows:

Declaration of Wobrick, Ph.D, all objections are overruled.
Declaration of David Ahearn: Sustain #15. Legal conclusion, Sustain #19. Legal conclusion. All remaining objections are overruled.
Declaration of Julie Anderson: #20 and #22 are overruled. #21 are sustained as hearsay.

It is true that admissions against interest cannot be repudiated by a subsequent, self-serving declaration. The court has discretion to reject the subsequent declaration. D’Amico v. Board of Medical Examiners, 11 Cal.3d 1, 21 (1974). However, the admission against interest must be “clear and unequivocal.” D’Amico at 21. The court is required to examine the purported admissions in light of the entire record. Summary judgment cannot be based on tacit admissions or fragmentary concessions. There must be a material inconsistency. Price v. Wells Fargo Bank,213 Cal. App. 3d 465, 482(Cal. App. 1st Dist.1989).

After consideration of the entire record, Plaintiff’s declaration is not materially inconsistent with her deposition testimony wherein she was able to identify and mark the area where she fell.

Declaration of Mark Anderson. #23 and #28. Sustained as hearsay. #24-27 are overruled.

Declaration of Mario Townsend #30-31. Overruled

Defendant’s Reply asks for a continuance of the hearing in order to allow Defendant to depose the experts whose declarations were submitted by Plaintiff. A continuance is not necessary because the motion fails based on the evidence submitted by Defendant, which contradicts testimony of other fact witnesses and the Plaintiff.