Deadly Collision


Long Truong v. Cu Van Nguyen (California)
(Woman Died in Watercraft Collision on Lack; Court Ruled Primary Assumption of the Risk Barred Negligent Operation Claim and There was No Evidence of Negligent Entrustment)

The plaintiff was a passenger on a personal watercraft being operated on a lake. She was killed in a collision with another personal watercraft. Decedent’s parents filed a lawsuit alleging that the other rider was negligent in the operation of the personal watercraft and that the owner of the watercraft had negligently entrusted the watercraft to the other rider. The defendants filed a motion for summary judgment arguing that the primary assumption of the risk doctrine precluded negligence liability because they had no duty to protect the decedent from the risks inherent in the activity of riding on a personal watercraft. Defendants also argued that there was no evidence of negligent entrustment. The trial court granted defendants’ motion, and the plaintiffs appealed.

On appeal, plaintiffs argued that the primary assumption of risk doctrine did not apply because the decedent was a passenger (rather than the operator), and she was not engaged in an active sporting activity at the time of the accident. Plaintiffs also urged the court to distinguish between “ordinary” or “casual” use of the personal watercraft and “extreme” use such as competitions or racing, claiming that the doctrine should not apply to casual use. In support of this argument, the plaintiffs contended that there were no skills required to be a passenger on a sit-down personal watercraft. Referring to an Indiana statute, plaintiffs argued that primary assumption of risk should not apply to the “casual” or “ordinary” operation of personal watercraft that occurred in this case as distinguished from the “extreme” operation of personal watercraft that occurs in tournaments, exhibitions, competitions, races, or parades.

In support of the appeal, plaintiffs cited the case of Shannon v. Rhodes (2001), which held that the primary assumption of the risk doctrine did not apply “where a driver of a boat takes passengers out on [the] boat for a simple ride around a lake.” Plaintiffs argued like the boat driver in Shannon, the decedent was simply a passenger who was taken out for a ride around the lake. Plaintiffs highlighted the fact that the personal watercraft was not being used for sport, and they distinguished other personal watercraft cases that applied the primary assumption of the risk doctrine by asserting that the other cases (unlike this case) involved the operation of the watercraft at relatively high speeds and engaging in maneuvers.

Citing studies, articles, and reports, the plaintiffs challenged the previous courts’ “common knowledge” assumption that personal watercraft operation poses a “significant risk of injury.” The plaintiffs asked the court to take judicial notice of the evidence, but the court refused because (1) the documents had not been presented to the trial court, (2) one of the reports was published after the trial court’s ruling, (3) the court was not convinced the materials were judicially noticeable under the Evidence Code, and (4) even if the materials were judicially noticed, they did not compel a contrary conclusion since they concerned different types and styles of personal watercraft.

On appeal, defendants argued that the activity at issue was identical to that in previous personal watercraft cases. They contended that the question of whether the decedent was the operator or a passenger of the vessel was not pertinent to the analysis, and that operation of a personal watercraft is not a benign activity like riding in a boat.

The court recounted the history of the application of the primary assumption of the risk doctrine in California, noting that the state Supreme Court and appellate courts had examined its applicability in a wide variety of cases involving sports and recreational activities, including water sports and boating. Ultimately the court concluded, as a matter of law, that operation of the watercraft did include inherent risks and dangers. The court confirmed that the primary assumption of the risk doctrine applied to both competitive and noncompetitive, but active sports and activities. Moreover, the court explained that if it adopted plaintiffs’ argument regarding the distinction between “casual” and “competitive” uses, the application of the primary assumption of risk doctrine of would be based on a characterization of the use of equipment or action occurring at the very moment of injury, rather than upon the general nature of the activity and the relationship of the plaintiff and the defendant to the activity.

Plaintiff did not argue that the other rider’s conduct was reckless, intentional, or outside of the range of ordinary activity involved in using personal watercraft. Finally, the court noted that since the other rider was not negligent because he had no duty to decedent, then the owner of the watercraft could no be negligent in entrusting the vessel to the other rider. The court affirmed the summary judgment in favor of the defendants.

NOTE: This is a lengthy opinion which takes a long time to reach a simple conclusion. Operating or riding on a personal watercraft whether in a competition or simply as a leisure activity is inherently dangerous and risky. This was the right decision and is consistent with the bulk of California law. The 2001 Shannondecision is an aberration in our opinion that continues to cause confusion.

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