Opinion
NOT TO BE PUBLISHED.
Superior Court County of Santa Barbara, Super. Ct. No. 1186096, James W. Brown, Judge.
Arias Ozzello & Gignac LLP, J. Paul Gignac, Lisa Johnston Nicholes; Law Office of John B. Richards, John B. Richards for Plaintiff and Appellant Andres Flores.
Hanger, Levine & Steinberg, Marc Steven Shapiro, Jesus Joseph Torres for Defendants and Respondents George Rusznak, Julie Rusznak and Rusznak Family Trust.
PERREN, J.
Appellant Andres Flores was hired by George Rusznak to remove a fallen tree. The tree was on property owned by respondents George and Julie Rusznak and the Rusznak Family Trust (Rusznaks). Flores was injured by a limb that fell from the tree while he was attempting to remove it. His complaint for premises liability and negligence was resolved by summary judgment in favor of the Rusznaks. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Flores, an independent contractor, was hired by George Rusznak to remove a cypress tree on the Rusznaks' property. The tree had blown down and lay over the Rusznaks' fence and partially on a neighbor’s property some 10 feet off the ground. Flores, who was an unlicensed, self-employed gardener and handyman, had previously removed a barn for the Rusznaks.
Flores inspected the tree approximately two weeks after it had fallen. At that time, Flores told George Rusznak that the tree was in a dangerous condition, but that he could remove it as he had performed similar jobs in the past.
Flores began work on April 2, 2005, while the Rusznaks were out of town. The Rusznaks did not provide tools or instructions to Flores. While Flores was trimming the tree, a branch fell injuring his leg. George Rusznak learned of the accident when Flores called him from the hospital.
Flores filed a complaint against the Rusznaks, alleging premises liability and negligence. The Rusznaks filed a motion for summary judgment on the grounds that (1) they had no prior knowledge, actual or constructive, of a dangerous condition on their property; and (2) they did not breach any duty owed to Flores.
In opposition to the motion, Flores submitted a declaration, stating in part: “I was first shown the cypress tree by Mr. Rusznak approximate[ly] three or four days before April 2, 2005. At that time, I realized that this tree created a dangerous condition on Defendant’s property. I understood that I was being hired in an effort to remove this dangerous condition.” Based on this admission, the Rusznaks filed a reply brief, asserting the action was barred under the assumption of risk doctrine. Before ruling on the motion, the trial court allowed the parties to file supplemental briefs on the issue of assumption of risk.
After considering the supplemental briefs and hearing oral argument, the trial court granted the motion on the grounds that Flores had presented no evidence of any negligent act or omission by the Rusznaks or that the Rusznaks breached any duty of care owed to Flores. The trial court also found that Flores assumed the risk but indicated it did not base its decision on this ground as it was not raised in the original noticed motion. The trial court’s order states in part: “Triable issues of fact exist whether the Rusznaks had notice of tree branches in a dangerous condition on their property[] [but] [¶] . . . [Flores] cannot prove the essential element of breach.”
In this appeal, Flores asserts that a triable issue of material fact exists whether the Rusznaks knew or should have known of the dangerous condition resulting in his injuries.
DISCUSSION
Standard of Review
We review an order granting summary judgment de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-769.) Summary judgment in favor of a defendant is proper if defendant shows one or more elements of a cause of action cannot be established, or there is a complete defense to the action, and the plaintiff fails to meet his burden of showing a triable issue of material fact. (Code Civ. Proc. § 437c, subd. (p)(2).)
"Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35; Code Civ. Proc., § 437c; Johnson v. Berkofsky-Barret Productions, Inc. (1989) 211 Cal.App.3d 1067, 1071.) The trial court must decide if a triable issue of fact exists. If there is none, and the sole remaining issue is one of law, it is the duty of the trial court to determine the issue of law. (Taylor v. Fields (1986) 178 Cal.App.3d 653, 659.)
"Appellate review of summary judgment is limited to the facts contained in the documents presented to the trial court. This court exercises its independent judgment as to the legal effect of the undisputed facts disclosed by the parties' papers. (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 80; Taylor v. Fields, supra, 178 Cal.App.3d at p. 660.) In so doing, we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents' claim and justify a judgment in the movant's favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. (Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401.)" (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)
The Rusznaks Had No Legal Duty to Protect Flores
"As a general rule, each person has a duty to use ordinary care and 'is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .'" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) In the trial court, the parties and the trial judge analyzed this case as one involving premises liability. Although finding that the Rusznaks had no liability for Flores' injuries, the trial court's tentative ruling contains the following gratuitous statement: "Triable issues of fact exist whether the Rusznaks had notice of tree branches in a dangerous condition on their property." Understandably, the focus of Flores' appellate argument is on the issue of notice.
The elements of a cause of action for premises liability on a negligence theory are duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Flores' theory of liability is that the Rusznaks had a duty to protect him as an invitee on their property and breached that duty by failing to correct a dangerous condition--the fallen tree--which they knew or should have known would cause injury to him. Relying on Ortega, Flores asserts that he was hired to remove the tree and that whether the tree branches existed in a dangerous condition long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. (See id. at p. 1207 ["Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations"].)
Flores' reliance on Ortega is misplaced. That case involved the duty of a storeowner to inspect its premises to ensure the safety of business invitees. "These cases observe that as to business invitees, the owner should conduct frequent inspections." (Ortega v. Kmart Corp., supra, 26 Cal.4th 1200, 1207.) Here, Flores was not a business invitee on the Rusznaks' property. He was hired by the Rusznaks to correct a dangerous condition on their property. Where, as here, an employee is injured by the very risk he was hired to remedy, the property owner is not liable as a matter of law under the doctrine of primary assumption of the risk.
Flores objects to this court considering "primary assumption of the risk" as a basis for ruling. The issue, however, was fully briefed in the trial court and on appeal. We may consider it. (Code Civ. Proc. § 437c, subd. (m)(2).)
The primary assumption of the risk doctrine bars a plaintiff's recovery for negligence when "it can be established that, because of the nature of the activity involved and the parties' relationship to the activity, the defendant owed the plaintiff no duty of care." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 ["Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms"].) "The doctrine of 'primary' assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. [Citations.] . . . Primary assumption of risk is a complete bar to recovery." (Childs v. County of Santa Barbara (2004)115 Cal.App.4th 64, 69.)
To determine whether the doctrine applies, a court must examine the nature of the activity and the relationship of plaintiff and defendant to the activity and to each other. "Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff's subjective knowledge or appreciation of the potential for risk. [Citations.] [¶] . . . [¶] Whether a duty exists 'does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on [1] the nature of the activity or sport in which the defendant is engaged and [2] the relationship of the defendant and the plaintiff to that activity or sport.' [Citation.] [¶] If a duty is found not to exist, primary assumption of risk applies, and a defendant is liable only if he intentionally injures the plaintiff or engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity." (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866.)
Numerous cases have applied the doctrine in various occupational contexts. In Nelson v. Hall (1985) 165 Cal.App.3d 709, the doctrine was applied to preclude a veterinary assistant from recovering against defendant dog owners whose dog had bitten the assistant during medical treatment. In Priebe v. Nelson (2006) 39 Cal.4th 1112, our Supreme Court recently applied the doctrine to preclude a commercial kennel worker from recovering under the "dog bite statute." (Civ. Code, § 3342.) The rule has been applied to such other diverse occupations as a tow truck driver (Dyer v. Superior Court (1997) 56 Cal.App.4th 61), a nurse's aide (Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761), a lifeguard (City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269), and a shark handler (Rosenbloom v. Hanour Corp. (1998) 66 Cal.App.4th 1477).
The example given by our Supreme Court in Neighbarger to illustrate when the doctrine would apply to bar recovery is identical to the facts presented here. "[A] contractor . . . is hired to remedy a dangerous situation; such a private contractor, as a matter of fairness, should not be heard to complain of the negligence that is the cause of his or her employment. [Citations.] [I]t is unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront." (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th 532, 542.)
By accepting employment to remove the Rusznaks' tree, Flores assumed the risk inherent in that employment. A limb falling from the tree is a danger encompassed within that employment. Any danger inherent in the removal of the tree was obvious, not obscured or concealed. The Rusznaks had no duty to inspect the tree or its individual branches or otherwise protect Flores from the injuries he sustained while engaged in his employment.
Fairly read, Flores' argument suggests a tree does not include its branches. Our analysis assumes that a tree is the sum of its trunk, branches and leaves. To do otherwise would do harm to nature as well as law and logic.
The judgment is affirmed. Respondents are to recover costs on appeal.
We concur:, GILBERT, P.J., COFFEE, J.