Kindrich v. The Long Beach Yacht Club
In the Court of Appeal of the State of California
28 October 2008
Cite as 2008 SOS 5928

Assumption of Risk not a Defense in Negligent Action

Plaintiff Carl Kindrich III’s father, a member of The Long Beach Yacht Club, died. It is his father’s wish to be “buried at sea”. The Club agreed to assist with the burial and permitted the Kindrich family to use one of its boats, without charge, for the ceremony. It also agreed to let Fuller, one of its longstanding members and a good friend of Carl’s father to pilot the boat for the ceremony.

The Club provided portable stairs on the dock to assist the attendees in boarding. The plaintiffs contended that when the boat returned to the dock, the portable steps is gone. According to the complaint, Fuller told Carl to tie off the boat as there was no one on the dock waiting to do so. As Carl “started to jump from the side of the boat onto the dock… the boat and dock move relative to each other causing Carl to fall and injure himself”.

Carl sued the defendants Yacht Club, the owner of the boat and the dock and Charles Fuller, the boat’s skipper, alleging that they had been negligent in their use and maintenance of both the boat and the dock. Specifically, he alleged that:

• They failed to have someone on the dock to assist in tying off the boat upon return


• They failed to ensure that the portable steps previously used in boarding the boat would be available for his use when he attempted to disembark

Carl’s wife Barbara, and son Michael, also sued. Barbara claimed loss of consortium, and Michael claimed emotional distress suffered as an aural percipient witness to his father’s injury.

The trial court granted summary judgment to defendants, reasoning the doctrine of primary assumption of risk applied to Carl’s decision to jump off the boat unto the dock. The Kindrich family appealed.

The defendants argued that the summary judgment was properly granted because they were not negligent. But the Court of Appeal held that this is a question of fact and not subject to summary judgment. As to the additional issues that Barbara suffered damages and whether Michael’s awareness of his father’s accident qualifies him as “bystander” entitled to recover on a theory of negligent infliction of emotional distress, the Court also ruled that this raise a question of fact.

The lone issue now left to be resolved by the Court is the issue involving the doctrine of primary assumption of risk. And to this, the court ruled that even if it is to conclude that Carl’s decision to jump off the boat was a voluntary one, and that therefore he assumed a risk inherent in doing so, this is not enough to provide a complete defense.

Because voluntary assumption of risk as a complete defense in a negligence action was abandoned in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829; only the absence of duty owed a plaintiff under the doctrine of primary assumption of risk would provide such a defense. But that doctrine does not come into play except when plaintiff and defendant are engaged in certain types of activities, such as an “active sport.” However, the Court said that that was not the case here; plaintiff was merely the passenger on a boat. Under Li, he may have been contributorily negligent but this would only go to reduce the amount of damages to which he is entitled.

The Court held therefore that the doctrine of primary assumption of risk is not applicable in this case and does not bar the plaintiffs’ action.

The Court reversed the summary judgment of the trial court.