Filed 8/31/17 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO ERIKA GROTHEER, Plaintiff and Appellant, v. ESCAPE ADVENTURES, INC., et al., Defendants and Respondents. E063449 (Super.Ct.No. RIC1216581) OPINION APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge. Affirmed. The Law Office of Robert J. Pecora and Robert J. Pecora for Plaintiff and Appellant. Agajanian, McFall, Weiss, Tetreault & Crist and Paul L. Tetreault for Defendants and Respondents.
“‘Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature.’” (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601.) “Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks.” (Ibid.) The doctrine applies to any activity “done for enjoyment or thrill . . . [that] involves a challenge containing a potential risk of injury.” (Record v. Reason (1999) 73 Cal.App.4th 472, 482; see Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 [by attending Burning Man festival plaintiff assumed risk of being burned during ritual burning of eponymous effigy].) The test is whether the activity “‘involv[es] an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’” (Nalwa, supra, 55 Cal.4th at p. 1156.) As we concluded above in the section on common carriers, a balloon’s limited steerability creates risks of mid-air collisions and crash landings. Moreover, those risks cannot be mitigated except by adding power and steering, which would fundamentally alter the free-floating nature of a balloon, turning it into a dirigible. “[T]he excitement of [ballooning] is that you never know exactly where you’re going to land . . . It’s taking something that is unsteerable and trying to steer it. That’s the challenge.” (Holt, On a Wind and a Prayer, supra, 83 A.B.A.J. at pp. 94-95; cf. Nalwa, supra, 55 Cal.4th at pp. 1157-1158 [refusing to impose
precedent for imposing on hot air balloon operators and their pilots a duty of care to instruct passengers on how to position themselves for landing. In Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 (Morgan), Division One of our appellate district held a golf course owner had a duty to design its course to minimize the risk of being hit by a golf ball, despite the fact such a risk is inherent to golfing, because doing so was possible “‘without altering the nature of [golf].’” (Id. at p. 134.) Our colleagues explained this duty stemmed from the fact the defendant was the golf course owner. If, on the other hand, the plaintiff had sued the golfer who had hit the errant ball, the action would have been barred by the primary assumption of risk doctrine. (Id. at pp. 133-134.) Nearly a decade after Morgan, the same court held a race organizer had a duty to minimize the risks of dehydration and hyponatremia—risks inherent to marathons—by “providing adequate water and electrolyte fluids along the 26-mile course” because “[s]uch steps are reasonable and do not alter the nature of the sport [of marathon running].” (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179.) Faced with a similar situation in Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, this court held an owner of a motocross track had a duty to provide a system for signaling when riders have fallen in order to minimize the risk of collisions. (Id. at p. 1084.) Track owners could satisfy this duty by employing “caution flaggers,” or some similar device, which would be relatively easy to implement and would not alter the nature of motocross. (Ibid.) As these cases demonstrate, the primary assumption of risk doctrine has never