In Bertsch v. Mammoth Community Water Dist., published June 1, 2016, the Third District Court of Appeal affirmed summary judgment in favor of the defendant water district in a wrongful death action. The decedent and his brother, on vacation with their father, were cruising around a neighborhood on their skateboards for fun. After coming to an intersection where their father planned to meet them, they pushed their way up an incline in the road so that they could come down the hill on their boards. Neither wore a helmet. The decedent came down the hill at speed on the wrong side of the road. The front wheels of his board hit a gap between the road and a concrete collar around a manhole cover. He was ejected, struck his head on the pavement, and eventually passed away from his injuries. The plaintiffs sued the water district under Government Code section 835 for maintaining a dangerous condition of public property. The trial court ruled that the decedent had assumed the risk of injury from skateboarding.
The appellate court agreed. The decedent's actions in pushing himself up the hill and skating down the road, on the wrong side, at speed and without a helmet, showed that he was using the skateboard for enjoyment or thrill, rather than merely for transportation. The primary assumption of risk doctrine therefore applied. The court rejected the argument that the water district could be held liable for increasing the risk to the decedent, because the duty to avoid increasing the risk applies only to those who are in an organized relationship with the injured party in relation to the activity. It did not hold the roadway or manhole cover out as an appropriate or safe place to skateboard. The policy reasons behind the assumption of risk doctrine, the court ruled, favor its application here.
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