Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG05199079
Margulies, J.
Plaintiff Rudy P. Rodriguez, while working as a Transportation Security Administration (TSA) airport screener, injured his back when he carried a large and heavy duffel bag from the X-ray screening machine to a nearby table. The bag’s owner had arrived at the ticket counter too late to check baggage for his flight, and he was told by an employee of the airline, defendant JetBlue Airways Corporation (JetBlue), to carry his luggage through TSA screening and check the large bag at the gate. Plaintiff sued, contending that JetBlue was negligent in directing such a heavy bag through TSA screening.
The trial court granted summary judgment against plaintiff on the ground that, as a part of his employment, plaintiff had assumed the risk that heavy luggage would be sent through TSA screening. We affirm.
I. BACKGROUND
Plaintiff’s complaint alleged a single cause of action for negligence. According to evidence submitted in connection with JetBlue’s summary judgment motion, plaintiff was employed at Oakland International Airport as a passenger screener by TSA in 2003. On December 13, he was operating the X-ray screening machine when a male passenger placed an “extremely large” duffel bag on the conveyor. The bag was so large that it barely fit through the X-ray machine. As the bag passed through the machine, plaintiff noticed that it contained several bottles of wine, which were evident on the screen. Plaintiff decided that the bag must be searched, but the TSA employee who was performing bag searches was occupied with another passenger. To clear the conveyor belt, plaintiff lifted the duffel bag after it emerged from the X-ray machine and moved it to a nearby table. To do so, plaintiff placed his hands on both sides of the bag, lifted it off the conveyor, and carried it “six or seven” steps to the table. When he reached the table, he felt a shooting pain in his lower back and right leg.
Plaintiff submitted evidence that the passenger was traveling on JetBlue. The passenger had reached the JetBlue ticket counter too late to check luggage and was told by a JetBlue employee to check his luggage at the gate instead. This was the reason the passenger carried such a large bag through TSA screening. Plaintiff sued JetBlue for negligence in directing that the heavy bag be taken through the checkpoint.
On summary judgment, JetBlue argued that plaintiff’s claim was barred by the doctrine of primary assumption of the risk, that it otherwise had no duty in tort to prevent heavy bags from being taken through TSA screening, and that there was no admissible evidence connecting JetBlue to the bag.
The trial court granted the motion, ruling that “the assumption of the risk doctrine precludes Defendant’s liability for injuries Plaintiff sustained in the normal course of his work as a security screener,” that much of the evidence connecting JetBlue to the incident was inadmissible hearsay, and that plaintiff was not entitled to a continuance under Code of Civil Procedure section 437c, subdivision (h).
II. DISCUSSION
A trial court will grant summary judgment where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment must prove the action has no merit. The defendant does this by showing one or more elements of the plaintiff’s causes of action cannot be established or that there is a complete defense to the causes of action. At this point, the plaintiff then bears the burden of showing a triable issue of material fact exists as to the causes of action or defense. (Code Civ. Proc., § 437c, subds. (c), (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
On appeal, we exercise our independent judgment, deciding whether undisputed facts negate a plaintiff’s claims as presented in his or her complaint or state a complete defense. (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 37.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.)
A. Assumption of the Risk
Plaintiff contends that the trial court erred in finding that he had assumed the risk of handling heavy baggage in his job as a TSA screener. The law governing application of the doctrine of primary assumption of the risk, which is a complete defense to a claim of negligence, was recently summarized in Saville v. Sierra College (2005) 133 Cal.App.4th 857. “ ‘As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. [Citation.]’ [Citation.] The doctrine of primary assumption of the risk is an exception to the general rule. The doctrine arises ‘where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury . . . .’ [Citation.] [¶] . . . . [¶] Determining the existence and scope of a defendant’s duty of care ‘is one of law to be decided by the court, not by a jury, and therefore it generally is “amenable to resolution by summary judgment.” [Citation.]’ [Citation.] [¶] 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.” (Id. at pp. 865–866.)
Although the doctrine of primary assumption of the risk is most often invoked in the context of leisure activities (e.g., Knight v. Jewett (1992) 3 Cal.4th 296 (Knight)), several cases have applied the doctrine to risks encountered in employment as well. These cases have taken their guidance from the “firefighter’s rule,” which holds that a firefighter injured while fighting a fire has no right of action against the person who caused the fire. (See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1121–1122 (Priebe).) In very general terms, cases applying primary assumption of risk in the employment context hold that persons whose employment inherently requires them to confront a particular risk have no cause of action against persons whose conduct created the risk. (E.g., Priebe, at pp. 1129–1131 [veterinary technician bitten by aggressive dog has no strict liability claim against dog’s owner]; Rosenbloom v. Hanour Corp. (1998) 66 Cal.App.4th 1477, 1480 [worker bitten by shark after being hired to transfer shark from one tank to another has no strict liability claim against shark owner]; Dyer v. Superior Court (1997) 56 Cal.App.4th 61, 69–72 [tow truck driver struck on freeway shoulder while servicing disabled car has no negligence claim against driver of disabled car]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [convalescent home nurse’s aide struck by Alzheimer’s patient has no claim against patient].)
These cases are the exception. Primary assumption of the risk ordinarily does not bar employees from recovering when they are injured as a result of on-the-job risks created by third parties. Particularly outside the work of public safety officers, “[t]he duty to avoid injuring others normally extends to those engaged in hazardous work. Thus, for example, both publicly and privately employed highway workers, who face the obvious occupational hazard of working in the middle of traffic, may recover for injuries caused by a third party’s negligent driving.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536 (Neighbarger).) Even “[t]he firefighter does not assume every risk of his or her occupation. [Citation.] The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene.” (Id. at p. 538.)
The cases in which primary assumption of risk has been invoked in the private workplace share certain characteristics. Each of the cases cited above features a plaintiff who has been injured as a result of a risk inherent in the contractual task that he or she (or, more often, his or her employer) was hired to perform. In addition, the risk was generally created by, and the plaintiff or employer generally hired by, the defendant. Although the cases have not followed a single analytic approach, they are united by the assumption, even when not expressly articulated, that “it 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, supra, 8 Cal.4th at p. 542.)
In determining whether plaintiff’s situation presents “an example of the proper application of the doctrine of assumption of risk, that is, an illustration of when it is appropriate to find that the defendant owes no duty of care” (Neighbarger, supra, 8 Cal.4th at p. 538), we take guidance from the Supreme Court’s recent decision in Priebe, supra, 39 Cal.4th 1112, in which the court extended the firefighter’s rule to the veterinarian’s office.In Priebe, the plaintiff was a veterinary technician and the defendant was the owner of a pit bull who had boarded his dog at the veterinary office. (Id. at p. 1116.) The plaintiff sued the owner after she was bitten while handling his pit bull as part of her job duties. (Id. at p. 1118.)
In considering the first factor identified by Knight, the nature of the activity, the court noted that the risk of dog bites is “ ‘a specific known hazard endemic to the very occupation in which plaintiff voluntarily engaged’ ” and that the veterinary office and the plaintiff were in “ ‘the best position to take necessary precautions and protective measures’ ” against dog bites, since they had possession and control of the dog. (Priebe, supra, 39 Cal.4th at p. 1130.) Similarly, the risk that a passenger will attempt to bring aboard heavy luggage is part of the job of a TSA screener. TSA screeners are at the mercy of travelers. People attempt to transport, both by checked and carry-on baggage, all manner of items, and the screener’s job requires him or her, at times, to carry the luggage containing those items. The risk that some of those bags will be heavy is obvious and endemic. Further, TSA and its screeners are in the best position to protect against the risks posed by such baggage. If TSA viewed heavy luggage as a particular problem, it could install scales or institute baggage weight limits. In addition, the screeners can adjust their behavior according to the size and appearance of the luggage and, more importantly, their own physical limitations. Because screeners differ in age, size, and strength, a bag one screener finds too heavy might present little risk to another. Based on knowledge of their own abilities, the screeners themselves can take measures to avoid carrying bags that present a risk of injury.
There was testimony in the record that, since the date of plaintiff’s accident, TSA has limited the number and size of carry-on items that can be taken through its checkpoints. We were not provided with the regulations, evidence of their purpose, or their effective date.
The potential for self-protection is evident here. Plaintiff could see that the duffel bag was unusually large and that it contained wine bottles, suggesting that it might be heavy. Once he picked the bag up, plaintiff knew that the bag was, in fact, unusually heavy. At that point, if not earlier, he could have decided whether to take protective measures to avoid injury, such as putting the bag down and seeking help from the passenger or another screener in carrying it. Instead, plaintiff carried the bag six or seven steps unaided before injuring his back.
Indeed, plaintiff’s voluntary decision to carry the bag once he was aware of its weight suggests that any negligence by JetBlue had little or no causal connection to plaintiff’s injury. Because JetBlue has not raised this issue, we do not address it further.
Second, as to the nature of the relationship between plaintiff and defendant, the Priebe court noted that “veterinarians, their trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel technicians) enter into contractual relationships with dog owners and receive compensation for the services they provide, which services, by their very nature and design, include the safe care and handling of dogs left in their charge.” (Priebe, supra, 39 Cal.4th at p. 1131.) Just as veterinary technicians must handle dogs, the “very nature and design” of the screeners’ job requires them to handle baggage transported by passengers through the TSA checkpoint. Although TSA and plaintiff are not under a contractual relationship with JetBlue, TSA screeners are public safety officers, like firefighters and police, who are hired by the government to provide security services to the airport, the airlines, and their passengers. TSA screeners are compensated for playing their role in the air transportation system.
Third, the Priebe court noted an additional policy justification for extending the firefighter’s rule to veterinarians. According to the court, the likelihood of dog bites and their potential gravity was outweighed by the utility of permitting the kenneling of dogs. As the court noted, extending the firefighter’s rule to veterinarians would “serve the policy of encouraging dog owners to avail themselves of the services of licensed commercial dog kennels, without the threat of liability and lawsuits for injuries caused by their dogs’ conduct hanging over their heads . . . .” (Priebe, supra, 39 Cal.4that p. 1131.)
We are similarly reluctant to inject tort duties into the relationship between airlines and TSA screeners. The risk presented by heavy luggage and the potential gravity of the harm is far outweighed by the utility of providing swift and safe luggage handling and security screening. Imposing a tort duty could easily add expense and inconvenience to air travel, which is already heavily burdened by security concerns. As every air traveler is aware, the airlines’ general practice is not to screen, weigh, or otherwise handle passengers’ carry-on luggage before it reaches the TSA checkpoint. They leave that task to TSA. Indeed, passengers who obtain boarding passes over the Internet and do not wish to check luggage need never come into contact with an airline employee before they reach the TSA checkpoint. If we were to impose the duty urged by plaintiff, airlines would be compelled to screen for size and weight all luggage that their passengers proposed to carry on board, forcing a substantial adjustment in current practices. The imposition of such a duty is particularly unnecessary because of the highly regulated and structured nature of airport security screening and the ability of TSA and its screeners to cope with the risks presented by heavy luggage.
In sum, we conclude that JetBlue had no duty to plaintiff in these circumstances. The risk of heavy luggage is one that is inherent in plaintiff’s job. Plaintiff is compensated for confronting that risk, and he and his employer are well-situated, far more than the airlines, to limit that risk by instituting personal or institutional protective measures.
Plaintiff argues that he should be permitted to have a jury decide whether handling heavy luggage is inherent in a TSA screeners’ job. The Supreme Court held unequivocally in Knight, however,that the issue of primary assumption of risk is one of duty, which is an issue of law for the court. (Knight, supra, 3 Cal.4th at p. 317.) It has consistently adhered to that position since. (E.g., Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) The cases relied on by plaintiff hold that a plaintiff is entitled to a jury only when he or she contends that the defendant’s conduct created risks beyond those inherent in the activity, and only as to the existence of extraordinary risk. (E.g., Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 592; Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 715; cf. Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635.)
We find no material dispute of fact relevant to the issue of inherent risk. Under current practices, airlines do not check the weight of luggage that passengers elect to carry on the airplane. Passengers may carry anything not prohibited by TSA in their carry-on luggage, which must be screened. Even small carry-on luggage can be very heavy if packed with dense items. It is self-evident that the risk that a passenger will bring heavy luggage through the TSA screening checkpoint is inherent in the screeners’ job.
Plaintiff provided evidence that JetBlue limits the weight of carry-on baggage permitted in its overhead bins, arguing that it demonstrates that JetBlue normally limits the weight of baggage carried through TSA checkpoints. Such an internal regulation, however, would not prevent passengers from bringing heavy luggage through TSA screening, but only from placing that luggage in overhead bins, rather than beneath seats or in other locations once on board. Plaintiff also argues that TSA screeners are told at the time of their hiring that they will be required to lift luggage typically weighing 40 pounds. This may represent typical carry-on luggage weight, but we have been pointed to no regulations in effect at the time of plaintiff’s incident to prevent individual passengers from bringing much heavier carry-on luggage through screening. TSA’s representations to its employees are not binding on air travelers. Plaintiff presented no evidence to contradict the obvious risk that TSA screeners will be called upon, at times, to handle heavy luggage.
Because we conclude that plaintiff’s claim is subject to primary assumption of the risk, we need not undertake the traditional duty analysis of Rowland v. Christian (1968) 69 Cal.2d 108, 113, applied outside the assumption of risk context.
B. Evidentiary Ruling
Plaintiff sought to introduce testimony by another screener working with him that the passenger said he had been directed by JetBlue to take his large heavy bag through TSA screening. According to the coworker, the passenger explained that he had arrived at the ticket counter too late to check luggage onto his flight, and a JetBlue employee told him to carry the duffel bag through security and check it at the gate. Plaintiff contends that the trial court erred in excluding this testimony as inadmissible hearsay. We find it unnecessary to address the propriety of the evidentiary ruling because admission of the disputed evidence would make no difference to our decision on duty.
Even assuming it was not hearsay, the only possible relevance of this statement—other than to demonstrate that the passenger was flying on JetBlue, an issue JetBlue disputed—was to support a claim that JetBlue had a duty to prevent luggage that was large enough that it would normally be checked from going through the TSA checkpoint. For the same reasons stated above, we find no such duty. Security regulations prohibit passengers who reach the ticket counter after a particular time before scheduled takeoff—generally 30 to 45 minutes—from checking luggage. It is likely that tardy passengers will sometimes choose to carry through TSA screening bags that are large and heavy enough that they would ordinarily be checked, rather than miss their flight or abandon their luggage. To rule that JetBlue had a duty not to permit the passenger to take his luggage through TSA screening would be tantamount to requiring the airlines to refuse to issue tickets to passengers who arrive soon enough to make their flight but too late to check luggage.
Although we make no ruling on the evidentiary issue, we note that the evidence is clearly hearsay and likely does not satisfy any of the exceptions.
For the reasons stated above, we are unwilling to interfere to this degree in the air transportation system. The decision to check luggage is generally dictated by the size of the luggage. Size is, of course, obvious to the TSA screeners. TSA and its screeners can therefore take appropriate precautionary measures, either by refusing to screen such bags or by demanding assistance in handling them.
Plaintiff’s colleague, for example, commented that the passenger’s duffel bag in this instance was “extremely large.”
Nor do we agree that JetBlue increased the risk beyond that ordinarily present as part of the TSA screener’s job by sending the passenger and all his luggage through TSA screening. Sending passengers with large heavy bags through TSA screening does not create a risk that is not otherwise present with small heavy bags. Further, large bags betray by their size the possibility that they might be heavy, thereby reducing the risk that TSA employees will handle them without taking adequate precautions. Accordingly, the testimony of plaintiff’s colleague is irrelevant to our decision, and we find it unnecessary to decide whether the evidence should have been admitted.
C. Continuance
Plaintiff also contends that the trial court erred in denying his motion for a continuance to conduct further discovery against JetBlue. Plaintiff had sought from JetBlue a copy of its Approved Program Manual that contains internal guidelines for the handling of luggage. JetBlue produced only portions of the manual. Plaintiff argued that decision of the summary judgment motion should be deferred until production of the remaining portions of the manual, but the motion for a continuance was denied.
Plaintiff also sought from JetBlue minutes of meetings between TSA and JetBlue, but JetBlue had no such minutes.
“[Code of Civil Procedure] [s]ection 437c, subdivision (h) provides: ‘If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.’ Subdivision (h) was added to section 437c ‘ “[t]o mitigate summary judgment’s harshness,” . . . [Citations]’ [citation] ‘for an opposing party who has not had an opportunity to marshal the evidence[.]’ [Citation.] The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. [Citations.] . . . [I]n the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion. [Citation.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253–254.)
We conclude that the information plaintiff sought through additional discovery was not essential to opposing the motion because it was immaterial to the issues of duty and assumption of the risk. JetBlue’s handbook of internal procedures had no bearing on the nature and extent of risks inherent in the job of TSA screener. Even if the JetBlue ticket agent violated those procedures by permitting the passenger to take his large bag to the gate for checking, it would not affect our conclusion that, in these circumstances, JetBlue owed no duty to plaintiff to prevent a passenger from taking a large heavy bag through TSA screening. (E.g., Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 165 [conduct in violation of sport rules is not beyond the risk inherent in the sport].) We find no abuse of discretion in the trial court’s refusal to continue the summary judgment motion for production of the remainder of the manual.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Stein, J.