Case Number: BC642600 Hearing Date: July 27, 2018 Dept: A

Duncan v BET Recreation

MOTION FOR SUMMARY JUDGMENT

Calendar: 3

Case No: BC642600

Hearing Date: 7/27/18

Action Filed: 12/2/16

Trial: 8/27/18

MP: Defendant BET Recreation, Inc. dba Jewel City Bowl

RP: Plaintiff William Duncan

ALLEGATIONS IN COMPLAINT:

Plaintiff William Duncan (“Plaintiff”) alleges that he slipped and fell on an oily and slippery substance while at Defendant BET Recreation Bowl, Inc. dba Jewel City Bowl (“Defendant”). The incident occurred on July 30, 3016.

The complaint, filed December 2, 2016, alleges causes of action for negligence and premises liability.

RELIEF REQUESTED:

Defendant moves for summary judgment on Plaintiff’s complaint for negligence and premises liability.

DISCUSSION:

Facts

The following facts are undisputed.

Plaintiff was an invitee at the premises of Defendant, known as Jewel City Bowl, on July 30, 2016. (Fact 1.) Plaintiff bowled in leagues years ago, sometime in the 1980’s and 1990’s for about 4-7 years. (Fact 2-3.) Plaintiff was aware that there were certain risks of slipping and falling when bowling. (Fact 6-7.)

Defendant’s premises has an audio system that plays music and messages, including maintenance requests and general announcements, which can be heard throughout the entire premises. (Fact 8.) One of Defendant’s general announcements, which is played consistently several times per hour, includes a 40-second recorded audio clip asking patrons, among other things, to stay behind the marked foul line in the bowling lane. (Fact 9.) Defendant also utilizes an automatic scoring system, and requires players to acknowledge their understanding of a warning that notifies each player of the inherent risks involved with bowling. (Fact 10.)

On July 30, 2016, Plaintiff entered Defendant’s premises, got bowling shoes, secured a bowling lane, changed into his rented bowling shoes, and selected a bowling ball. (Fact 4.) Plaintiff used a 14-16 pound ball, which is similar to the weight range of the ball he owns. (Fact 5.) While Plaintiff was in his bowling motion in the approach area prior to the foul line, he slipped and fell on an extremely slippery and oily foreign substance. (Fact 12.)

Negligence and Premises Liability

The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

“‘Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk…bar[s] recovery because no duty of care is owed as to such risks.’(Citation.)” (West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357.) Thus, the defendant owes no duty to protect the plaintiff from a particular risk of harm, whether plaintiff’s conduct in undertaking the risk was reasonable or unreasonable. (Knight v. Jewett (1992) 3 Cal.App.4th 296, 309.) However, while a defendant can escape liability for injuries due to an inherent risk encountered, a defendant has “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Id. at 315-316.) An inherent risk is one that cannot be eliminated without altering the nature of the sport. (Id. at 317.) A duty is owed to participants not to unreasonably increase the risks of injury beyond those inherent in the activity (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162), or to engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport (Shin v. Ahn (2007) 42 Cal.4th 482, 486.)

“Judges deciding inherent risk questions under Knight may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Nalwa, supra, 55 Cal.4th at 1158.) “Thus, it is not entirely accurate to say inherent risks of an activity always present purely legal questions, because sometimes the nature of an activity and its risks must be gleaned from the evidence.” (Jimenez v. Roseville City School District (2016) 247 Cal.App.4th 594, 608.)

Defendant argues that it is entitled to summary judgment because the doctrine of primary assumption of the risk imposes a bar on this Court to adopt comparative fault principles in this matter. Defendant cites to Plaintiff’s deposition to show that he has bowled for years, and that he was aware of the risk of slipping and falling when bowling. (Fact 2-3, 6-7.) Defendant also provides the declaration of Tony Sands (owner of the bowling alley), who states that Defendant’s premises has an audio system, which makes general announcements several times an hour stating, in part: “To ensure your safety, we ask that you stay behind the marked foul line in your bowling lane….” (Fact 8-9.) Mr. Sands also declares that players cannot bowl until they acknowledge their understanding in writing that notifies each player of the inherent risks of bowling. (Fact 10.) The “Player Warning” states: “Bowl at Your Own Risk [¶] Risk of bodily injury is associated with this game. Do not cross the black foul line. …” (Sands Decl., ¶4 at Ex. A.)

Based on the evidence provided by Defendant, Defendant has upheld its initial burden in summary judgment regarding the applicability of the primary assumption of the risk doctrine to the activity of bowling. Defendant has shown that the parties were aware of the inherent risk of bowling (i.e., slipping and falling). Further, despite multiple warnings from Defendant about slipping and falling, Plaintiff went forward with bowling and thereafter slipped and fell. Thus, the burden shifts to Plaintiff to raise a triable issue of material fact.

In opposition, Plaintiff does not dispute that there is a potential for slipping and falling while bowling. However, Plaintiff disputes that he did not assume the increased risk of falling as a result of Defendant’s acts and negligence.

In his deposition, Plaintiff testified that as he was approaching the lane to bowl, he stopped just right before the player’s side of the foul line and slipped on an oily surface. (Pl.’s Depo. at pp. 21, 23-24.) He states that he did not trip or lose his balance, but rather slipped through the approach area to the foul line. (Id. at pp. 23, 59.) He states that based on his experience bowling in the past, he knows not to pass the foul line and that was the procedure he always followed, including on the day of the incident. (Id.) He also states that prior to bowling, he made sure nothing was on his shoes because he most likely rubbed his hands on the bottom of his shoes prior to bowling. (Id. at p.24.) He states this was common practice for league bowlers to wipe the bottom of one’s shoes prior to bowling. (Id.)

Plaintiff also provides the declaration of retained expert, Jay William Preston, who has worked in the area of accident prevention, accident investigation and reconstruction, and safety engineering activity. (Preston Decl., ¶¶2-5.) Mr. Preston states that he viewed a video of the incident showing Plaintiff’s slip and fall incident. (Id., ¶¶13, 16.) He observed that the foul line was clearly marked and that Plaintiff slipped prior to reaching the foul line. (Id., ¶14.) He opines that the incident could only have occurred due to a mishap of the lane oiler or its oil/lubricant, or the spill of liquid. (Id., ¶15.) Mr. Preston states that lane oil is transparent and odorless and is almost impossible for a casual observer to recognize a spill of lane oil as a hazard. (Id., ¶16.) He opines that a slippery approach to the bowler’s side of the foul line is not a risk that Plaintiff could have assumed, and that Defendant failed in its duty by either causing the spill of lubricant or by failing to clean a previous spill. (Id., ¶¶20-21.)

Plaintiff’s evidence raises a triable issue of material fact regarding whether Defendant had a duty to use due care not to increase the inherent risks of falling while bowling in the approved manner. Plaintiff has provided opposing evidence showing that he did not pass the foul line, but that he slipped and fell before reaching the foul line. While it may be undisputed that Defendant did not have a duty to protect Plaintiff from slipping and falling past the player’s side of the foul line, Defendant had a duty to ensure that no lane oil passed onto the player’s side of the foul line. In other words, Defendant had a duty not to increase the risk to Plaintiff over and above those inherent in bowling. Further, though Defendant warned patrons not to pass the foul line, they did not warn patrons of the risk of oily surfaces before the foul line.

Accordingly, Plaintiff has raised triable issues of material fact. Therefore, the Court will deny the motion for summary judgment.

RULING:

Deny Defendant’s motion for summary judgment.