Filed 1/17/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARK OLSON,

 Plaintiff and Appellant,

v.

PATRICK SAVILLE,

 Defendant and Respondent.

2d Civ. No. B324465

(Super. Ct. No. 20CV02207)

(Santa Barbara County)

In this personal injury case, we hold the doctrine of 

primary assumption of the risk bars liability for injuries caused 

by a negligent surfer to a fellow surfer because those injuries 

were caused by risks inherent in the sport of surfing. 

Mark Olson appeals from the order granting summary 

judgment for respondent Patrick Saville. Appellant contends 

that triable issues of material fact exist as to whether respondent 

is protected by the primary assumption of risk doctrine. We 

disagree and will affirm.
2

FACTUAL AND PROCEDURAL BACKGROUND1

Appellant and respondent were surfing in a group at 

Miramar Beach in Montecito. Respondent was riding a custom 

longboard without a leash.2 Appellant caught a wave. 

Respondent then “appeared out of nowhere” and “dropped in” on 

the wave without looking in appellant’s direction.3 This forced

appellant “to make a fast turn correction to his left toward the 

beach” and to “exit into the white water to his left.” Appellant

“grabbed both [of] his board rails (aka sides) and pushed himself 

and the nose of the board slightly down and into the foam pile of 

whitewater toward the deeper water and away from respondent.”

Respondent was still standing on his board heading toward the 

shore. As appellant made his exit and ducked into the wave, 

respondent’s board propelled backward and struck appellant’s

torso and back.

Appellant sued respondent for negligence. He alleged that 

respondent “intentionally entered the wave and intentionally cut

off appellant’s path of travel, thereby forcing appellant to exit the 

1 We rely on undisputed facts and allegations in the 

complaint.

2 A longboard is a board that is “typically longer than nine 

feet in length.” (Paul Caprara, Surf’s Up: The Implications of 

Tort Liability in the Unregulated Sport of Surfing (2008) 44 Cal. 

Western L.Rev. 557, 573, fn. 90 (Caprara).) Respondent’s 

longboard was 10 feet 4 inches long. A leash is a cord that 

attaches the ankle of the surfer to the tail end of the board.

3 “Dropping in” or “shoulder-hopping” describes a surfer 

getting in the right of way of another surfer who is surfing the 

same wave.” (Caprara, supra, 44 Cal. Western L.Rev. at p. 571.)
3

wave.” He further alleged that respondent’s “failure to use a 

leash to control [his] longboard” and his use of a “sharpened and 

deadly fin” was “reckless and displayed a w[a]nton disregard for 

the safety of others.” Respondent moved for summary judgment

on the ground that appellant’s cause of action was barred under

the primary assumption of risk doctrine. The trial court granted 

the motion, finding “the inherent risks of the sport of surfing 

include surfers ‘dropping in’ on other surfers, not wearing leashes 

while riding longboards of the type used by respondent, and using 

surfboards that have sharp fins.” 

DISCUSSION

Appellant does not dispute that the primary assumption of 

the risk doctrine applies to surfing. He contends, however, that 

summary judgment is not appropriate because triable issues of 

material fact exist as to whether respondent acted recklessly or 

increased the sport’s inherent risks. 

Standard of Review

“[A] motion for summary judgment shall be granted if all 

the papers submitted show that there is no triable issue as to any 

material fact and that the moving party is entitled to a judgment 

as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)4 A 

defendant moving for summary judgment “bears the burden of 

persuasion that ‘one or more elements of’ the ‘cause of action’ in 

question ‘cannot be established,’ or that ‘there is a complete 

defense’ thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. 

(2001) 25 Cal.4th 826, 850 (Aguilar); § 437c, subd. (p)(2).)

“A defendant seeking summary judgment on the basis of 

primary assumption of the risk must establish ‘that the 

4 All unlabeled statutory references are to the Code of Civil 

Procedure unless otherwise stated.
4

defendant owed no legal duty to the plaintiff to prevent the harm 

of which the plaintiff complains.’ [Citation.]” (Capri v. L.A. 

Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1087.) 

If the defendant meets this burden, the burden of production 

shifts to the plaintiff to “set forth the specific facts showing that a 

triable issue of material fact exists.” (§ 437c, subd. (p)(2); 

Aguilar, supra, 25 Cal.4th at p. 849.) “There is a triable issue of 

material fact if, and only if, the evidence would allow a 

reasonable trier of fact to find the underlying fact in favor of the 

party opposing the motion in accordance with the applicable 

standard of proof.” (Aguilar, at p. 850, fn. omitted.)

“On appeal from the granting of a motion for summary 

judgment, we examine the record de novo, liberally construing 

the evidence in support of the party opposing summary judgment 

and resolving doubts concerning the evidence in favor of that 

party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 

446, 460.)

Primary Assumption of Risk

The primary assumption of risk doctrine “precludes 

liability for injuries arising from those risks deemed inherent in a 

sport.” (Avila v. Citrus Community College Dist. (2006) 38 

Cal.4th 148, 161.) It “rests on a straightforward policy 

foundation: the need to avoid chilling vigorous participation in or 

sponsorship of recreational activities by imposing a tort duty to 

eliminate or reduce the risks of harm inherent in those activities. 

It operates on the premise that imposing such a legal duty ‘would 

work a basic alteration—or cause abandonment’ of the activity.”

(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 (Nalwa),

quoting Kahn v. East Side Union High School Dist. (2003) 31 

Cal.4th 990, 1003 (Kahn).) The doctrine applies both to sports 
5

and recreational activities “‘involving an inherent risk of injury to 

voluntary participants . . . where the risk cannot be eliminated 

without altering the fundamental nature of the activity.’” 

(Nalwa, at p. 1156, quoting Beninati v. Black Rock City, LLC.

(2009) 175 Cal.App.4th 650, 658.)

“[D]efendants generally do not have a duty to protect the 

plaintiff from the risks inherent in the sport, or to eliminate risk 

from the sport, although they generally do have a duty not to 

increase the risk of harm beyond what is inherent in the sport.” 

(Kahn, supra, 31 Cal.4th at p. 1004, citing Knight v. Jewett (1992) 

3 Cal.4th 296, 315-316 (Knight), italics added.) A coparticipant 

breaches this duty only if he “intentionally injures another player 

or engages in conduct that is so reckless as to be totally outside 

the range of the ordinary activity involved in the sport.” (Knight, 

at p. 320.) “[C]onduct is within the range of ordinary activity 

involved in a sport if that conduct cannot be prohibited without

deterring vigorous participation in the sport or otherwise 

fundamentally altering the nature of the sport.” (Freeman v. 

Hale (1994) 30 Cal.App.4th 1388, 1396.) Determining the nature 

of a defendant’s legal duty (and the inherent risks that flow from 

the activity) “depends heavily on the nature of the sport itself.”

(Knight, at p. 317.)

Appellant’s Injuries Resulted from 

the Inherent Risks of Surfing

“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 p. 1158.) Courts generally do not consider 
6

the legal conclusions of expert declarations but can receive 

“expert testimony on the customary practices in an arena of 

esoteric activity for purposes of weighing whether the inherent 

risks of the activity were increased by the defendant’s conduct.’ 

[Citation.]” (Kahn, supra, 31 Cal.4th at p. 1017.) Our de novo 

review includes such declarations to the extent they help us 

understand the sport of surfing. (Towns v. Davidson (2007) 147 

Cal.App.4th 461, 472-473, italics omitted [“A court in its 

discretion could receive expert factual opinion to inform its 

decision on these issues, particularly on the nature of an 

unknown or esoteric activity, but in no event may it receive 

expert evidence on the ultimate legal issues of inherent risk and 

duty.”]; Kahn, supra, 31 Cal.4th at p. 1017 [same].)

California courts have applied the doctrine to 

coparticipants in a variety of sports, such as snow skiing and 

other non-contact sports, but not yet to surfing. (See, Cheong v. 

Antablin (1997) 16 Cal.4th 1063, 1066 (Cheong) [holding the 

doctrine barred a skier’s negligence claim against another skier 

who unintentionally injured him in a collision]; Shin v. Ahn 

(2007) 42 Cal.4th 482, 486 (Shin) [extending the doctrine to apply 

to the non-contact sport of golf].) We note that snow skiing and 

surfing have much in common: (1) “both sports involve individual 

participants that use nature, either a mountain slope or wave, as 

a propulsion mechanism”; (2) “[b]oth require similar equipment 

in the form of skis, snowboard, or surfboard to participate”; and 

(3) “the most important similarity between skiing and surfing is 

the use of the right-of-way custom to promote safety and order 

among participants.” (Caprara, supra, 44 Cal. Western L.Rev. at 

p. 562.)
7

Respondent submitted the declaration of Ian Cairns, a 

champion surfer and coach, who opined that surfing is an 

“extreme sport” with “many inherent risks.” Cairns stated it is 

“extremely common for surfers to ‘wipe out’” and lose control of 

their board given the variability of ocean conditions. “Because 

‘wipeouts’ are so common, it is a known risk that a surfer may 

collide with another surfer, or another surfer’s board.” He 

explained the sport is largely regulated by unwritten safety 

customs and practices he referred to as “‘surfing etiquette.’”

(citing Caprara, supra, 44 Cal. Western L.Rev. at p. 571.) He 

stated, “[t]hese rules encompass such things as priority, right-ofway, and sharing waves.” Nonetheless, “violating this surfing 

etiquette is common among surfers.” He further opined it is “not 

uncommon for surfers to surf without a leash” and “[m]any

longboard surfers particularly enjoy the challenge and freedom of 

surfing without a leash” which otherwise could interfere with 

their footwork and speed. Lastly, Cairns noted that surfboards 

“contain between one and four fins, which assist the board with 

speed and stability” and that the fins are “very sharp and can 

inflict significant injury.” 

Appellant’s expert did not oppose the core components of 

Cairn’s opinion. He did not dispute that surfers often violate 

well-established rules of etiquette. The experts appear to agree 

that surfers commonly collide and lose control of their boards; 

that boards have sharp fins that can cause injury; and that some 

surfers choose to forego leashes because they can inhibit speed 

and agility. The undisputed evidence shows that appellant’s 

injuries resulted from these risks. We agree with the trial court 

that the primary assumption of the risk doctrine bars appellant’s 
8

negligence claim absent evidence that respondent recklessly or 

increased the sport’s inherent risks. 

There Is No Evidence Respondent Acted Recklessly

or Increased the Inherent Risks of Surfing

Appellant relies primarily upon surfing expert Shaun 

Tomson to support his contention that respondent’s conduct was 

reckless. Tomson explained that “[o]ver time, the sport of surfing 

has adopted the Surfing Code and Rules of Etiquette.” According 

to Tomson, “surfers have a self-managed obligation to observe the 

Surfers Code and Rules of Etiquette and not increase the risk of 

harm to others in the water.” He described the rules of etiquette 

as follows: (1) observe the right of way of others; (2) look for

other surfers before entering the wave; (3) do not interfere with, 

“drop in” or cut off surfers already riding a wave; (4) hold onto 

and do not let go of your board; (5) wear a surf leash so you do not 

lose control of your board; and (6) be aware and communicate 

with others around you. Tomson opined that respondent’s 

blatant disregard of these rules constituted a “conscious and 

wanton reckless disregard” for the safety of fellow surfers, 

especially considering his experience in the sport. 

Tomson supported his conclusions by citing the 

“Leash/Legrope Policy” found in the International Surfing 

Association Rule Book (ISA), which he described as “the World 

Governing Body for [s]urfing and all related activities.” The 

policy reads: “As a risk management precaution . . . the ISA has 

a mandatory leash/legrope policy at events, due to the potential 

risk to other participants.” (ISA Rule Book & Contest 

Administration Manual, September 2023 Section D Competition 

Rules, subsection xvii (a), p.34.) The policy further states, “[f]ree 

surfing with or without a leash is at the rider’s discretion 
9

however the ISA recommends the use of a leash if there is a 

possible danger to third parties.” (Id., subsection xvii (b).) 

Appellant analogizes respondent’s failure to use a leash to

the snowboarder’s failure to use a retention strap in Campbell v.

Derylo (1999) 75 Cal.App.4th 823. Campbell reversed the trial 

court’s granting of summary judgment for plaintiff on the 

grounds of primary assumption of risk, finding defendant’s 

failure to use a retention strap “increased the inherent risk of 

injury to coparticipants from a runaway snowboard.” (Id., at 

p. 829.) It noted that a local ordinance as well as a “Skier 

Responsibility Code” posted at the ski resort required their use.

(Ibid.) The court also found that using a strap “would not impede 

or alter the sport of snowboarding” or “chill or deter vigorous 

participation.” (Id., at p. 830.) We do not consider Campbell 

analogous. No law governs the use of surfboard leashes. No 

signs were posted requiring their use at Miramar Beach. More 

significantly, appellant does not dispute Cairns’ opinion that a 

leash can alter the nature of the sport by interfering with a 

longboard surfer’s “footwork and speed” and by posing a tripping 

hazard to surfers who “walk” on their board. (Cf. Szarowicz v. 

Birenbaum (2020) 58 Cal.App.5th 146, 166 [ice hockey expert’s 

testimony that “open ice check[ing]” in a “no-check” game

increased the sport’s inherent risks raised triable issues of fact to 

defeat summary judgment].)

Appellant’s expert merely described what could be done to 

reduce the risks inherent in surfing. Showing respondent could 

have acted with more caution does not establish he acted 

recklessly. Reckless conduct is more than “‘“inadvertence”’” or 

“‘“a failure to take precautions.”’” (Towns v. Davidson, supra, 147 

Cal.App.4th at p. 470, citing Delaney v. Baker (1999) 20 Cal.4th 
10

23, 31-32.) It requires a “‘“deliberate disregard” of the “high 

degree of probability”’” that an injury will occur. (Ibid.) 

Although both experts acknowledged respondent may not have 

followed the rules of etiquette, we are wary of relying too heavily 

on such guidelines when defining the scope of an activity’s 

inherent risks. (See, e.g., Shin, supra, 42 Cal.4th at p. 497, fn. 9

[failure to follow golf etiquette of yelling “fore” to minimize 

chance of hitting other golfers with ball does not justify imposing 

liability].) 

The undisputed evidence here showed that failure to follow 

the rules of etiquette is common in the surfing community. 

Appellant admitted: (1) he has witnessed other surfers riding a 

longboard without a leash; (2) a leash could obstruct some 

movement of an advanced surfer; (3) he has witnessed prior 

collisions between surfers; (4) he has witnessed another surfer 

failing to maintain control of their board; and (5) he personally 

has had surfers “drop-in” or “shoulder-hop” on his wave. 

Respondent’s similar conduct, it follows, was not reckless or 

outside the range of the ordinary activity in surfing. 

“‘By eliminating liability for unintended accidents, the 

doctrine [of primary assumption of the risk] ensures that the 

fervor of athletic competition will not be chilled by the constant 

threat of litigation from every misstep, sharp turn and sudden 

stop.’ [Citation].” (Cheong, supra, 16 Cal.4th at pp.1071-1072.) 

No trier of fact could reasonably find that respondent’s conduct 

fell outside of the protection of the primary assumption of risk 

doctrine. Vigorous participation in surfing “likely would be 

chilled if legal liability were to be imposed” in these 

circumstances. (Knight, supra, 3 Cal.4th at p. 318.)
11

DISPOSITION

Judgment is affirmed. Respondent shall recover his costs 

on appeal. 

CERTIFIED FOR PUBLICATION.

CODY, J.

We concur:

GILBERT, P. J.

YEGAN, J. 
12

Hon. Donna D. Geck, Judge

Superior Court County of Santa Barbara

________________________________________

Law Office of Eric A. Woosley, Eric A. Woosley; The Law 

Offices of Bradford D. Brown, Bradford D. Brown, for Plaintiff 

and Appellant.

Freeman Mathis & Gary, Albert K. Alikin, Christian E. Foy 

Nagy, and Christopher J. Fleissner, for Defendant and 

Respondent.