California applies assumption of risk doctorine to passenger on personal watercraft- Winter 2008
April, 2008
Truong v. Nguyen
156 Cal. App. 4th 865 (2007)
The California Court of Appeal held that the primary assumption of risk doctrine applied to bar claims asserted by the survivors of a passenger killed in the collision of two watercraft.
In Truong, plaintiffs' decedent was killed when defendant's personal watercraft ("PWC") overtook and struck the PWC on which the decedent was a passenger, killing her. Plaintiffs filed a wrongful death action against the operator and the owner of the PWC that hit the decedent's PWC, alleging negligence, negligence per se, and negligent entrustment.
Plaintiffs argued the primary assumption of risk doctrine should not apply to bar a recovery because the decedent's PWC was being operated casually, moving very slowly and not engaging in racing, exhibition, or more extreme modes of use. Plaintiffs urged the adoption of the rationale in Shannon v. Rhodes 92 Cal.App.4th 792 (2001) in which a six year old passenger in a ski boat was severely injured when she fell from the boat when the operator suddenly accelerated. In that case the court found that the passenger riding in the boat was not engaged in the type of activity covered by the assumption of risk doctrine.
The Truong court refused to apply Shannon because the passenger was participating in activity on a high speed, high performance, open craft, done for the enjoyment and thrill of that performance, and because being such a passenger requires physical exertion, elements of skill, and a challenge which contains a potential risk of injury. The court rejected the "casual" versus "extreme" use distinction as a basis for applying the doctrine because the inquiry is not the activity at the moment of injury, but the nature of the general activity of riding a PWC.
Because the primary assumption of risk doctrine applied, the defendant operator had no duty to the decedent. Therefore, the court reasoned that the defendant owner could not be liable for negligent entrustment because the operator could not be held negligent.
The decision provides an excellent overview of the doctrine of primary assumption of risk and its application to the operation of personal watercraft, as well as a detailed analysis of the application of the doctrine under the facts of the case.