Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
|Sportsfishing And The Parent-child Relationship!|
Sportsfishing And The Parent-child Relationship!
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!!
[This column is intended to provide general information only and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.] Reprinted from New Era Magazine Myles M. Mattenson © 1998-2002