Hodges v. Summer Fun Rentals, Inc.

MEMORANDUM *** In this maritime negligent failure to warn case, the outcome determinative issue is whether a rental agency in the business of renting personal watercraft (PWC) has a duty to warn the user, or lessee, that “wake jumping”1 and operating a PWC within 200 feet of another vessel is dangerous. The district court held that there was no duty to warn because those dangers are open and obvious. We agree and therefore affirm the judgment of the district court. The parties agree that a rental agency has no duty to warn of open and obvious dangers. However, the parties dispute whether that issue is one of law or of fact. We have held that “the question of whether a risk is obvious or generally known is one of fact and thus should be decided by a trier of fact when reasonable minds may differ.” Maneely v. General Motors Corp., 108 F.3d 1176, 1179 (9th Cir.1997). Accordingly, when a defendant claims it owes no duty to warn because of the open and obvious nature of the danger, the court is required to make a threshold determination as to whether reasonable minds can differ with respect to the open and obvious nature of the danger. If reasonable minds cannot differ as to the obviousness of danger, the court decides the question as matter of law, but if reasonable minds can differ, obviousness of risk is a jury question. The dangers of wake jumping include the danger that the rider may fall off the PWC or may collide with another vessel. We conclude that reasonable minds could not differ with respect to whether it is open and obvious that (1) one might fall off a PWC while, during, or after jumping a wake or (2) collide with another vessel while, during, or after jumping a wake. These dangers are obvious to any person of ordinary intelligence. Further, the dangers of operating a PWC too closely to another vessel is intuitive and obvious. We need not reach the proximate cause issue because there is no duty to give this particular warning. We do not see any error regarding the admissibility of Captains Greiner and Richard’s testimony as they did no more than offer their conclusion that dangers of wake jumping are not open and obvious. The dissent sees that different wakes to be jumped require a warning to the jet ski user. We think the care required in the presence of other craft and heavy waves is obvious. To hold otherwise we might as well require the car renter to tell the user to watch for traffic and slow the speed [92] when near other vehicles, or to require the lessor of a building to tell the lessee to walk slowly going down stairs and to keep a safe distance from others. AFFIRMED. Footnotes [***] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. [1] "Wake jumping" is not a well-defined term. The district court stated, "it is clear that wake-jumping referred to in this case involved crossing a wake at such a speed that the PWC will become airborne, that is, it will leave the surface of the water as it crosses the wake and will come back into contact with the water somewhere on the other side of the wake, depending on the speed and height of the wake." Neither party disputes this definition and we adopt it.