2017-00221945-CU-PO

Tiffany Stoute vs. Titan Tree Service

Nature of Proceeding: Motion for Summary Judgment

Filed By: Leonard, Susan F.

Defendant Frank Cook Realty, Inc.’s motion for summary judgment is granted.

Plaintiff Tiffany Stoute filed this action alleging causes of action for negligence and premises liability against Defendant and non-moving defendant Titan Tree Service based on injuries she received while riding an ATV. She alleges that the defendants were negligent in maintaining the subject property and failing to warn of a dangerous condition on the property. Defendant now moves for summary judgment.

Defendant’s separate statement includes the following. On April 13, 2017, Plaintiff attended a gathering at a rural residential property located at 41490 South River Road in Courtland. Plaintiff had been to the property on previous occasions and was an experienced ATV rider. Plaintiff was injured while riding her ATV at the property. Shortly after beginning her ride around the property on the ATV, Plaintiff hit something causing her to fall from the ATV. Plaintiff was not sure what she hit but was later told her husband it was a tree log. Plaintiff does not know where the log was on the property when she hit it.

At the time of the accident, the property was leased by Chem Xiong and managed by Defendant. Defendant had no notice that Mr. Xiong, Plaintiff or others were riding ATVs on the property or using the property for off-roading activities. Defendant had no notice of the April 13, 2017 gathering at the property. Mr. Xiong’s lease agreement with Defendant required Mr. Xiong to maintain the yard and advise Defendant of problems associated with the property, including dead grass, plants or tree limbs. Mr. Xiong never contacted Defendant to report tree logs on the property or request that

logs be removed from the property. Mr. Xiong testified at his deposition that he believed the tree logs were on the property for several weeks or months prior to Plaintiff’s accident. The tree logs were located off the driveway on an embankment between the driveway and the street. The logs were not concealed and were visible from the driveway. Mr. Xiong testified that he was not concerned about the tree logs on the property and that there were no logs on the driveway on the day of the incident.

Defendant moves for summary judgment on the basis that Plaintiff’s complaint is barred by the primary assumption of risk doctrine.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315.) However, “[t]he existence of duty is not an immutable fact of nature, but rather an expression of policy considerations providing legal protection. [citation] Thus, the existence and scope of a defendant’s duty is a question for the court’s resolution. [citation] When a sports participant is injured, the considerations of policy and duty necessarily become intertwined with the question of whether the injured person can be said to have assumed the risk. [citation]” (Shin v. Ahn (2007) 42 Cal.4th 482, 488-489.) “In cases involving ‘primary assumption of risk’-where by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury-the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Knight, supra, 3 Cal.4th at 315-316.)

“[A] court need not ask what the risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the [activity] and the defendant’s role in or relationship to that [activity] in order to determine whether the defendant owes a duty to protect a plaintiff from a particular risk of harm.” (Alvia v. Citrus Community College District (2006) 38 Cal.4th 148, 161.) Case law has applied the doctrine to off-roading. (Distefano v. Fortester (2001) 85 Cal.App.4th 1249.)

Defendant argues that falling off an ATV after crashing into tree logs on the property was an inherent risk in riding an off-road vehicle on uneven rough terrain. It argues that under Knight it had no duty to protect her from that risk. It further argues that it did nothing to increase the risk because Defendant never gave Mr. Xiong or anyone else permission to use the property for off-roading. It further points out that Mr. Xiong had a duty under the lease to maintain the property and notify it if there were any problems and yet he was not concerned about the logs and never asked Defendant to remove them. Defendant also argues that it cannot be liable for any alleged negligence because it did not have actual or constructive notice of any dangerous condition.

In opposition Plaintiff argues that Defendant failed to meet its initial burden of proof on a primary assumption of risk defense because it did not demonstrate that it did not increase the inherent risks in the off-roading, or show a lack of causation between its conduct and her injuries. However, this showing was not a part of Defendant’s initial burden. Plaintiff cites to the case of Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1062-1063 for this proposition. There the court stated that to obtain summary judgment on the primary assumption of risk doctrine the moving defendant had the initial burden to show that it did not increase the inherent risks a musician assumed while performing on stage. Fazio made clear that this analysis was appropriate “when the doctrine is applied outside the sports context.” (Id. at 1059.)

Here, however, off-roading is within the sports context. (Distefano, supra, 85 Cal.App.4th 1249.) More importantly, as the California Supreme Court has stated, its statement in Knight regarding a duty not to increase the risks to the participant “was made in the context of our discussion of the duty owed by parties who have some organized relationship with each other and to a sporting activity-in our example, that of a ski resort and patron. Nevertheless, the Court of Appeal below seized upon this language as support for a general duty not to increase the risk inherent in whatever sporting or recreational activity a plaintiff happens to be pursuing, regardless of the lack of relationship between the parties. We did not impose such a general duty in [ Knight]….[w]hen as here, parties have no such (or similar) relationship-and instead are

independent actors, separately pursuing their own activities-a defendant generally has no duty to avoid increasing the risks inherent in a plaintiff’s activity.” ( Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482 [emphasis added]) Parsons set forth cases where a duty would be appropriate, for example, where the defendant was a purveyor of recreational activities or a coach or sports instructor. (Id.) “These post-Knight cases confirm that when, as here, no relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty upon the defendant to avoid increasing the risk of harm to the plaintiff over that posed by the activity in which the plaintiff happens to be engaged, the defendant has no such duty.” (Id. at 483.)

One such post-Knight case is particularly instructive. (Calhoon v. Lewis (2000) 81 Cal.App.4th 108.) There a plaintiff was injured while skateboarding on his friend’s parents’ driveway. Summary judgment was properly granted to the parents on the basis of the primary assumption of risk doctrine. Calhoon stated that “[t]here are no facts showing the [parents] held out their driveway as an appropriate place to skateboard, or in any other way represented that the driveway was a safe place for skateboarding. Therefore, unlike a recreational business operator or a purveyor of recreational activities, they had no organized relationship with [plaintiff] vis a vis the sport of skateboarding. Absent this relationship, a party does not have a ‘general duty not to increase the risk inherent in whatever sporting or recreational activity a plaintiff happens to be pursuing…’” (Id. at 117 [quoting Parsons, supra].)

Plaintiff does not argue that ATV riding is a type of sporting activity as to which the primary assumption of risk doctrine does not apply, or that a fall while riding is an inherent risk. Rather her argument is that there are questions of fact as to whether Defendant increased the risks inherent in the activity. However, this is not a part of Defendant’s initial burden as discussed above. But even if it were, Defendant’s evidence shows that it was the property manager, had no notice that anyone was riding ATV’s on the property or using the property for off-roading activities and was not aware that plaintiff was even at the property on the day in question. (UMF 8-10.) Defendant’s evidence was sufficient to demonstrate that it had no organized relationship with plaintiff vis-à-vis the sport of ATV riding. Defendant’s evidence is sufficient to demonstrate that by virtue of the nature of the subject ATV riding and Plaintiff’s and Defendant’s relationship (or lack thereof) to the activity, Defendant owed no duty to protect Plaintiff from the risk of harm that caused her injury. Defendant’s showing was sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact.

Plaintiff’s showing is not sufficient. Plaintiff argues that there are triable issues of fact as to whether Defendant increased risks of riding ATVs at the property because Mr. Xiong emailed Defendant on two occasions to advise them that a tree had fallen on the

driveway. Plaintiff then points to the fact that Defendant engaged Titan Tree Service to remove the fallen tree and clean up debris. She also cites to deposition testimony from Mr. Xiong which she argues creates an issue of fact as to whether the logs were visible. She also provides a declaration from a property management expert who opines that Defendant’s failure to inspect the property after the tree removal service was below the standard of care for property managers. (Saldivar Decl. ¶ 11.) However, Plaintiff has presented no evidence to demonstrate that Defendant had any sort of organized relationship with Plaintiff vis-à-vis ATV riding. There is no evidence that Defendant was a purveyor of recreational activities, that it held out the property as a place for off-roading, or represented that the property was safe for off-roading. Nor, is there any evidence, for example, that Defendant organized the event on the day in question, such as in the case of Luna v. Vela (2008) 169 Cal.App.4th 102, where the defendant homeowner created a volleyball court in his front yard and the plaintiff was invited to play. None of the evidence presented by Plaintiff bears on the key issue of whether Defendant had an organizational relationship with Plaintiff vis-à-vis ATV riding. Indeed, the undisputed evidence demonstrates that Defendant was not holding out the property as an appropriate place for ATV riding and was not even aware that such activity was occurring. Plaintiff has failed to demonstrate the existence of a triable issue of material fact as to whether Defendant and Plaintiff had the type of relationship which would impose upon Defendant the duty not to increase the risk to Plaintiff inherent in ATV riding. As a result, the undisputed evidence demonstrates that Defendant had no such duty.

The Court notes that Plaintiff attempted to dispute two of Defendant’s material facts. Plaintiff attempted to dispute Defendant’s material fact 12 which states that Mr. Xiong never contacted Defendant to report tree logs on the property or request that the logs be removed. The evidence offered to dispute that fact is Mr. Xiong’s testimony that he twice contacted Defendant about fallen trees. The stated fact is not that Mr. Xiong contacted Defendant about fallen trees but whether he contacted Defendant to remove tree logs. That Mr. Xiong also testified that he did not want any logs leftover is not relevant. It is undisputed that Mr. Xiong testified that he never contacted Defendant regarding the tree logs that were left from the cut up tree. (UMF 12) Plaintiff also attempts to dispute Defendant’s material fact 14 which states that the tree logs were not concealed and were visible from the driveway. The supporting evidence, Mr. Xiong’s deposition testimony, demonstrated that the logs were visible if one entered or exited the house from the driveway or drove up to or left the house. (UMF 14) Plaintiff’s citation to another portion of Mr. Xiong’s deposition does not dispute this fact. Plaintiff cites to a portion of his deposition where he responded to a question asking whether the embankment on which the logs were on was an area where people would ride ATVs. He responded “No. It wasn’t visible to like anybody to walk there, because it was like-it was a slope, and it just had trees and then the driveway.” (Moua Decl. Exh. 1 p. 46:9-46:22.) It is not even clear what Mr. Xiong is referring to, but just prior to that question, he was asked whether the logs were visible or if they were covered by leaves or brush and he said “They’re visible.” Later in the deposition he repeated that the logs were visible. (Def.’s Exh. C 73:5-12.) Plaintiff has not disputed any material facts.

The motion for summary judgment is granted on the basis that Plaintiff’s claims against Defendant are barred by the primary assumption of risk.

Given the above, the Court need not address Defendant’s other argument that it had no actual or constructive notice of any dangerous condition at the property and that

therefore there is no evidence that any alleged negligence caused Plaintiff’s injuries. To that end, this inquiry would only be necessary if the primary assumption of risk defense did not apply and Defendant were found to have owed a duty to Plaintiff. In any event, Defendant’s evidence showed that it was not aware of any prior incidents or accidents on the property, Mr. Xiong never contacted Defendant to report tree logs on the property or request that logs be removed from the property, the tree logs were located off the driveway on an embankment between the driveway and the street, and the logs were not concealed and were visible from the driveway. In addition, Mr. Xiong testified that he was not concerned about the tree logs on the property and that there were no logs on the driveway on the day of the incident. Further, Plaintiff was not sure what she hit when she fell but was later told by her husband it was a tree log though she does not know where the log was on the property when she hit it. This evidence is sufficient to demonstrate that Defendant had no actual or constructive knowledge of any dangerous condition on the property and that there was nothing for which Defendant needed to warn Plaintiff.

Plaintiff’s evidence on this point is essentially the declaration from her expert that Defendant’s conduct fell below the standard of care in failing to inspect the property after Titan Tree completed its work. However, the expert offers no opinion that leaving tree logs (which the evidence shows to have been visible) fell below the standard or care, or that any inspection would have prevented Plaintiff’s injuries. A landowner is only required to make reasonable inspections of the premises and warn of any latent or concealed conditions and is only liable for conditions of which it had actual or constructive notice. (Taylor v. Centennial Bowl (1966) 65 Cal.2d 114, 121; Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 744-745.) Plaintiff has failed to demonstrate the existence of a triable issue of material fact in the question of whether Defendant had actual or constructive knowledge of a dangerous condition such that its conduct caused her injuries. The motion is granted on this additional basis.

The Court notes that in her response to certain of Defendant’s material facts, Plaintiff asserted that the facts were “irrelevant.” This appears to be an objection to the fact stated in the separate statement though Plaintiff did not file evidentiary objections as required by CRC Rule 3.1354. The Court only rules on objections to evidence.

Defendant’s motion for summary judgment is granted.

Defendant’s counsel is directed to prepare an order for the Court’s signature pursuant to CCP § 437c(g) and CRC Rule 3.1312.