Alfred Shaheen v. Jordan & Associates Investments, Inc. dba Sun Buggie Fun Rentals, Inc.

Established law holds that a “valid release precludes liability for risks of injury within the scope of the release.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)

Here, the waiver was for Plaintiff’s “PARTICIPATION IN CONCESSION ACTIVITIES AND ANY INCIDENTAL ACTIVITIES THERETO....” Plaintiff agreed to “PROTECT, HOLD HARMLESS, DEFEND AND INDEMNIFY JORDAN & ASSOCIATES INVESTMENTS INC., SUN BUGGIE FUN RENTALS AND/OR THE STATE OF CALIFORNIA FROM ALL CLAIMS DEMANDS AND LEGAL ACTIONS OF ANY NATURE, THAT IN ANY MANNER RELATE TO THE RENTAL OR USE OF OHV OR OTHER EQUIPMENT RECEIVED OR OBTAINED FROM CONCESSIONAIRE; AND/OR ARISING AS A RESULT OF MY PARTICIPATION IN THE ACTIVITIES THAT ARE THE SUBJECT OF THIS AGREEMENT.” (Motion, Ex. 2.)

The waiver was for participation activities related to the use of equipment received or obtained from Defendant. The waiver applied to any equipment rented so the specification of a 300cc ATV in the rental agreement did not raise an ambiguity.

B. Accident Compilation

Plaintiff asserts he should have been allowed to present a list of accidents compiled by the Oceano Dune Parks and Recreation Department to rebut the testimony of Defendant’s owner, Randy Jordan, that there had been a three-year period without any injuries to customers. The Court determined that the list constituted hearsay and its probative value was outweighed by its prejudice under Evidence Code section 352.

Plaintiff argues the list was offered for the sole purpose of impeaching Mr. Jordan’s testimony rather than to prove liability (Motion, p. 10, lns. 24-25) but argues the list was admissible because “[e]vidence of a pattern of prior accidents and injuries, particularly when known to the rental operator, bears directly on whether Sun Buggie acted with the heightened culpability necessary to overcome the waiver’s protection for ordinary negligence.” (Motion, p. 11, lns. 3-5.)

Neither the compilation nor the testimony at the 402 hearing provides information showing the compilation of accidents is relevant or reliable.

With respect to rebuttal, Plaintiff presents no evidence clarifying when the three-year period without injury allegedly occurred. To the extent Mr. Jordan’s testimony might be misinterpreted by the jury, Plaintiff was free to cross-examine Mr. Jordan and otherwise develop testimony regarding Defendant’s safety record to rebut Mr. Jordan’s comment.

The compilation, however, was based on an unidentified third person’s (or possibly persons’) review and summarization of accident reports submitted by numerous officers over a period of ten years. The compilation includes only one line of information for each accident and the injuries listed include, among many others, “none,” “sand in eyes,” “head pain,” “mid & lower back pn,”

“lac to chin,” “bottom teeth,” “finger tips, palm,” etc. (Opposition, Ex. G.) There is no information as to how each accident occurred or as to the specific ATV or equipment involved.

Nothing in the compilation indicates an injury resulting from Defendant’s gross negligence. Even if, as Plaintiff argues, the Evidence Code section 1280 exception to hearsay applies to the compilation, the evidence has minimal probative value. The compilation shows only that accidents regularly occur on dunes involving rented vehicles. 1 It does not show that Defendant never had a three-year period without injury. It does not show any lack of safety precautions on the part of Defendant.

C. Proposed Special Instructions

Jury instructions “should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition [citations.]” (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217.) “A trial court may refuse to give a requested instruction if the subject matter is adequately covered by the other instructions.” (Ghezavat v. Harris (2019) 40 Cal.App.5th 555, 558–59 [citation omitted].)

Here, the Court instructed the jury on gross negligence using Judicial Council of California Civil Jury Instruction (CACI) 425 and refused Plaintiff’s proposed gross negligence special instructions 5, 6, and 7.

CACI 425 states, “Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or by failing to act.” This instruction accurately informed the jury on applicable law.

Special Instruction 5 states, “Where a company renting a recreational activity to a customer can take reasonable measures that would increase safety without also altering the nature of the activity, then the company renting the activity is required to take such safety measures.” (Leonardo Decl. ¶ 6, Ex. 6.) The instruction asserts that failing to take available, reasonable safety measures constitutes gross negligence instead of leaving it to the jury to determine whether under the evidence, Defendant’s conduct constituted an extreme departure from what a reasonably careful person would do.

Special Instruction 6 states, “Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude towards results.” (Id.) This language merely rewords the correct standard with improper emphasis on passive and indifferent conduct. A jury instruction

1 The compilation includes multiple rental companies experiencing accident rates similar to those listed for Defendant.

that is redundant may cause ambiguity. (See, e.g., Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 620.) The instruction was properly refused.

Special Instruction 7 states, “Evidence of conduct that evinces an extreme departure from manufacturer’s safety directions or an industry standard can demonstrate gross negligence.” The word “can” evidences the problem with the proposed instruction. Many facts can demonstrate gross negligence. This instruction improperly singles out departure from manufacturer safety directions or industry standards and places improper emphasis on them.

Plaintiff was free to argue to the jury the specific facts or issues he sought to highlight in the proposed special instructions and explain how those facts or issues fit the elements of CACI 425. Argumentative special instructions are not, however, appropriate. The Court correctly refused the special instructions.

II. Ruling

The motion for new trial is denied.

4