Twenty-four persons, with varying degrees of fishing skills,
boarded a sportsfishing boat for a day of ocean fishing off San
Clemente Island. One fellow's line became hopelessly entangled
in kelp. A deckhand approached to assist in freeing his line.
The unlucky fisherman backed up and handed his pole to the
deckhand; however, while doing so, the line "slingshotted" back
over the rail toward a still more unlucky fisherman, who was
struck in the eye with the sinker, causing a partial loss of
vision.
The injured fisherman sued the offending fisherman, and was met
with the defense of assumption of the risk. The defendant
fisherman claimed he had no duty to the injured fisherman.
In determining whether a duty should be imposed on a participant
in a sporting activity, the court considers whether the
imposition of the duty "might chill vigorous participation in the
implicated activity and thereby alter its fundamental nature."
The trial court determined that the doctrine of assumption of the
risk should prevail in sport fishing. The Court of Appeal
affirmed, noting that:
"a danger of injury from a hook or sinker flying
toward a participant is an inherent risk in
sportsfishing, and imposing the specter of liability
regarding the danger would chill or alter the
sport. . . . Hooking and catching fish require a great
deal of knowledge, physical skill, and attention. A
participant who worries whether he is hooked on a fish
or kelp, and what method should be used to deal with
the line in either instance, will not be an effective
fisherman, and may be inclined to give up the sport."
The court noted that the assumption of risk doctrine applies also
to figureskating, "a `teamless' sport where one participates in
close proximity with others so engaged. Sportsfishing is the
same type of close-proximity endeavor."
An individual throwing a discus, however, owes a duty of due care
to check the field before throwing because another participant
who has completed a throw and is retrieving his discus should not
assume the risk that the next participant will throw without
looking towards the landing area.
The plaintiff argued that since assumption of risk cannot be
invoked in hunting accidents, it should not be invoked in
accidents involving sportsfishing. The court noted, however,
that the doctrine cannot be invoked in hunting accidents "because
of the special nature to others posed by the sport of hunting."
The court also observed that the plaintiff made "no showing
sportsfishing has attained a similar status. Although fishing
carries with it certain dangers, it does not involve the
potentially mortal danger involved in hunting."
Perhaps the judges should have rented the movie "Jaws" and
watched it in chambers!
In an area of California known as Butte County, a Court of Appeal
was moved to shout, "Enough already!!" The Court was presented
with a case in which the plaintiff sought to recover damages for
emotional distress allegedly occasioned by his father's attempt
at suicide in his presence. The son successfully intervened.
On Bastille Day in 1992, (the day of July 14 is of no moment in
this country, but it's of great importance in France) the
defendant father killed his wife, the plaintiff's mother. He
then telephoned his son and announced:
"`I just blew your mother's head off and I'm going
to blow my head off.' [The son] and his wife
immediately drove the short distance to defendant's
home and found defendant in the driveway `with a
shotgun pointed [at] his chin, and the butt on the
ground with [a] stick in the trigger mechanism area.'
Plaintiff observed his mother in a parked car `slumped
over the driver's side to the passenger's side, with no
face.' Plaintiff asked defendant if he was going to
kill himself in front of his son and daughter-in-law
and defendant responded: `You're God damned right I
am. I'm not going to jail.' Plaintiff pleaded with
defendant not to shoot himself. He kept talking to
defendant and edged closer. When defendant was
distracted, plaintiff `lunged for the gun.' They
wrestled for control of the weapon and it discharged,
very slightly injuring plaintiff's wife. Defendant was
subdued and taken into custody. He was later convicted
of murdering his wife and sentenced to prison. As a
result of the July 14 incident, plaintiff alleged he
developed posttraumatic stress disorder."
The plaintiff and his siblings thereafter settled a wrongful
death claim against the defendant for the death of their mother.
The Court of Appeal notes that the "settlement stripped defendant
of all his assets." In this second action, the son claimed to be
a direct victim of the father's conduct and sued him for
additional damages, claiming negligent infliction of emotional
distress.
The Court of Appeal essentially observed that, for the son to
recover as a direct victim, he must show that his father breached
a duty to prevent his adult child from suffering emotional
distress, and commented as follows:
"Heartache and emotional pain are an inherent
staple of the parent-child relationship. Neither
parent nor child will always live up to the other's
expectations. A parent may be distressed, for example,
when his child fails at school or gets in trouble with
the law. The child may be distressed when his parent
is fired from a job or so mismanages the family's
finances that they are evicted for failure to pay
rent."
"These are examples of conduct which, though
essentially self-destructive, cause emotional distress
to members of the transgressor's family. The
experience of emotional trauma is certainly not the
only defining characteristic of the family
relationship, but it is one of them. Indeed, it is
often the price to be paid for being a member of a
close family unit. Only in families that are not close
are the members sufficiently indifferent to one
another's personal failings not to feel emotional
distress."
The court concludes:
"It is the duty of the family members . . . to
weigh the risk of emotional trauma against the benefit
of saving a loved one's life. Having weighed that
risk, the family member . . . may decline to go to the
scene. But having elected to go, the relative must be
prepared not only to rejoice in a rescue but to endure
the emotional burden of a tragedy as well."
The moral of the story? If you take your son or daughter
fishing, be careful out there! And, no weapons on board,
please!!
