Is the Failure to Follow the “Surfing Code and Rules of Etiquette” Grounds for Liability?

March 29, 2024

            You avid readers of the Law Review know we have written about plenty of sports injury cases, where the party that allegedly caused the injury and was sued, defends on the basis that the injured party “assumed the risk.” Assumption of the risk defenses are common for snow skiing injuries, but according to the Second District Court of Appeal no assumption of the risk case has ever been decided regarding surfing. Until now.

SURFING COLLISION AT MIRAMAR BEACH

            Patrick Saville and Mark Olson were surfing at Miramar Beach in Montecito. Saville was riding a custom longboard without a leash. Olson claims he had caught a wave when Saville “dropped in” on the wave such that Olson had to make a fast turn correction to the left and as he ducked into the wave to avoid Saville, Saville’s board struck him in the torso and back resulting in serious injuries.

            Olson sued Saville claiming he was negligent by cutting into Olson’s wave and because Saville didn’t use a leash. Plus, Saville had a “sharpened and deadly fin.” The trial court ruled for Saville.

ASSUMPTION OF RISK

            Saville defended claiming he was protected by the primary assumption of risk doctrine which “precludes liability for injuries arising from those risks deemed inherent in a sport.”

            As the Court wrote, defendants do not have a duty to protect from the risks inherent in the sport or to eliminate all risks from the sport, although defendants generally do have a duty not to increase the risk of harm.

            The public policy behind the assumption of the risk doctrine is to “avoid chilling vigorious participation” in recreational activities.

            Olson, the injured surfer, claimed Saville was not merely negligent but was reckless and as such Olson did not assume the risk of his injuries. Olson also claimed that Saville violated the Surfing Code and Rules of Etiquette adopted by surfers.

SURFERS FREQUENTLY VIOLATE THE SURFING CODE

            The Court of Appeal ruled against Olson noting that “failure to follow the Rules of Etiquette is common in the surfing community. This includes surfing without a leash and occasionally ‘dropping in’ on a wave and of course all surfboards have sharp fins.” The Court found that Saville “was not reckless or outside the range of ordinary activity in surfing.”

            I agree with this decision. To rule otherwise would open a floodgate of lawsuits every time there was a surfing collision. With multiple surfers trying to catch the same wave, there are bound to be close calls.

            Jim Porter is a retired attorney from the Porter Simon law firm. These are Jim’s personal opinions. Porter Simon has offices in Truckee, California and Reno, Nevada. Porter Simon’s practice areas include:  real estate, development, construction, business, HOA’s, contracts, family law, personal injury, accidents, mediation and other transactional matters. Jim may be reached at jameslporterjr@gmail.com. Like us on Facebook. ©2023