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In this appeal, Horvitz & Levy LLP successfully defended the grant of summary judgment under the primary assumption of risk doctrine, which shields defendants from liability for injuries arising from the inherent risks of recreational activity.

Brett Bertsch fell off his skateboard and suffered a fatal head injury while riding downhill on a private road owned by Sierra Star Community Association. Plaintiffs Richard and Mitchell Bertsch (Brett’s father and brother) then sued Sierra Star and the Mammoth Community Water District, contending that Brett fell when his skateboard wheel hit a small gap between the road and a manhole cover. Relying on the primary assumption of risk doctrine, the trial court granted summary judgment for Sierra Star and the Water District. Plaintiffs appealed, and Horvitz & Levy represented Sierra Star on appeal.

The California Court of Appeal (Third District) affirmed in a published opinion. The court held that downhill skateboarding is an inherently risky activity covered by the primary assumption of risk doctrine, regardless of whether the skateboarder is attempting to perform a dangerous trick. In so holding, the court reasoned that it would be unduly burdensome to require road owners and water districts to make their roads and utility access points safe for skateboarding.