Law even delves into risk of scootering | SierraSun.com
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Law even delves into risk of scootering

Law Review, Jim Porter

Eleven-year-old Tatiana Childs fell and was injured while riding a scooter on a sidewalk in Santa Barbara. Of course, she sued (after all, this is America), claiming the sidewalk slab had lifted three inches from the adjoining sidewalk section. Apparently Tatiana was using one of those little fold-up scooters.

Why I remember as a kid, we made scooters by nailing a wooden crate box onto a board screwed to metal roller skates. Early version scooters. But in those days, we didn’t have concrete sidewalks. And we walked to school, sometimes without shoes. Maybe you’ve heard that story.

Assumption of risk

Santa Barbara County defended its position in Tatiana’s lawsuit, claiming she “assumed the risk” of riding her scooter, and that the risk of coming upon uneven surfaces and falling from a scooter is inherent in the activity of riding a scooter. That’s straight from the court case.

As in most cases of recreational activities, like snow and water skiing, flag football, baseball, rock climbing, bicycle racing and other competitive sports involving some risk and element of danger, there is generally no liability, unless the sponsor or organizer of the event increases the risk of the participant’s injuries. The athlete assumes the risk of injuries.

Santa Barbara County considered Tatiana’s scooter riding like competitive sports: If she participates, she assumes the risk and may not sue.

Governmental liability

Tatiana claimed that Santa Barbara County was liable because her injuries were “a reasonably foreseeable risk of a dangerous condition on public property.” I.e., the assumption of risk defense does not apply. The general law “a dangerous condition on public property” controls. The county should have fixed the three-inch rise in the sidewalk slab.

Recreational use

The court discussed another case where a young man was performing a skateboarding maneuver on a friend’s driveway, a trick known as an “Ollie,” when he lost control and was badly injured. The court in that case concluded that the skateboarder had assumed the risk because he was performing a tricky stunt like a competitive event. Besides, the driveway owner was not liable based upon the immunity for recreational use of private property. I particularly like that immunity in Civil Code ¤ 846.

Scootering

The court analogized scootering with bicycling riding and automobile driving, as being either a “means of transportation” or done in a competitive, organized manner like a bike race or a car race. In the latter, the participants assume the risk of injury and generally may not sue, while simply scootering about or casually riding a bicycle or driving a car is not subject to the assumption of risk defense. Is anyone following this?

Conclusion

The court concluded that the fundamental rule of tort law is that everyone is liable for the harm they cause based on their fault, reduced by any contributing fault by the injured party. The defense of assumption of risk, which excuses people when they injure someone, should not be expanded beyond competitive, recreational activities.

If Tatiana is found to have been performing some tricky scootering stunt or was racing down the sidewalk, she may be found to have assumed the risk and will lose. Why didn’t I just say that sooner?

Jim Porter is an attorney with Porter — Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at porter@portersimon.com or at the firm’s Web site http://www.portersimon.com.


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