McGarry v. Sax
Filed January 10, 2008, Third District,
Cite as 2008 SOS 186

Injured Spectator Fails To Show Store Negligence In Torts Case

Daniel McGarry attended and watched a skateboard exhibition in the parking lot of skateboard store Wave Skate and Surfwear (The Wave). After the exhibition, a “product toss” was conducted, in which items were thrown to spectators. McGarry caught a tossed skateboard, but failed to get hold of it as the crowd around him pushed, shoved, and trampled him, causing him to be injured.

As a result, McGarry sued the owners of The Wave for personal injury, alleging that the store may be held liable for ‘setting in motion’ the series of events that lead to his injuries.

Nevertheless, both parties disclaimed that they had any reason to believe that a product toss would result in injuries, neither being aware of instances in which a product toss would develop into a mob scene.

After hearing, the trial court granted summary judgment against McGarry, concluding that he failed to demonstrate a triable issue of material fact on the negligence element of duty.

In reviewing the case, the Third District court of appeals affirmed the decision, holding that the doctrine of primary assumption of risk barred McGarry’s claim.

According to the court, among the elements of negligence are the defendant’s obligations to conform to a certain standard of conduct for the protection of others against unreasonable risk, or duty. And as a general rule, one owes no duty to control the conduct of another, or to warn those endangered by such conduct. Such a duty may arise, however, if a special relation exists between the actor and the third person that imposes a duty upon the actor to control the third person’s conduct, or a special relation exists between the actor and another that gives the other a right to protection.

In this case, the appeals court noted that The Wave sought to invoke the special relationship doctrine by arguing that in the absence of a special relationship, there was no duty to control the conduct of spectators or protect McGarry from such conduct.

On the other hand, McGarry disavowed the special relationship theory, contending instead that The Wave had a duty to refrain from conduct creating an unreasonable risk of harm to others. This was consistent with the notion that the special relationship doctrine applies to claims of nonfeasance, a failure to protect from the harmful acts of others.

In relation, McGarry’s claim was one of misfeasance, based on these two instances:

• That The Wave performed an affirmative act that created an unreasonable risk of harm.


• The risk was not from the skateboard itself but from the foreseeable conduct of third persons in attempting to gain possession of the board.

In this respect, the court of appeal agreed, noting that if McGarry’s allegations were correct, The Wave had initiated the chain of events leading to his injuries.

However, the court said, the use of special relationships to create duties is largely overshadowed by the more modern practice of balancing policy factors which are determined as:

• The factor of the foreseeability of reasonable harm to the plaintiff, which in this case was critical.


• The risk of injury must be apparent.

The appeals court noted that in McGarry’s case the risk of injury was apparent and the resulting injury is reasonable foreseeable, therefore the tort analysis must balance the other policy factors.

However, under the doctrine of primary assumption, risk applications are limited as the general rule, so that in certain situations the nature of the activity means that the defendant owes no duty to the plaintiff to act with due care.

The doctrine frequently applies to sporting activities where conduct, which is deemed dangerous, may be part of the sport itself. In these instances, a participant breaches the duty of care only by intentionally injuring another or acting so recklessly as to be outside the range of expected activities.

In McGarry’s case, the product toss was much like a competitive sporting event, in which people in a crowd competed to retrieve products tossed into their midst. Part of the thrill is the unpredictability, and an inherent risk is that a competitor might fall and others land around or on him.

Thus in ruling, the court said that The Wave may not be held liable for McGarry’s injuries, not because of the absence of foreseeability, but in light of the nature of the activity and the relationship of the parties engaging in the activity.

Finally, the appeals court held that McGarry, as a participant in the activity of attempting to retrieve the deck, assumed risk of being injured due to carelessness of fellow participants, thereby absolving The Wave of any responsibility to it.

The Third Appellate District, therefore, affirmed the prior decision of the trial court.