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Is a Surfer Liable to a Fellow Surfer For Injuries Caused in a Wipeout?

Imagine you’re surfing.  You know there’s some risk that is associated with the sport.  You could drown, you could be injured by being thrown against the rocks.  There’s a chance you could collide with a fellow surfer or, worse, have an encounter with a shark.  But what about the risk from another surfer with whom you may have a history who decides to intentionally drop in on your wave and whose board also injures you because it has a razor-sharp fin and said surfer doesn’t use a leash to secure his board to his body?  That’s essentially the issue presented in Olson v. Saville 2024 Cal App. LEXIS 25.

Saville did not adhere to the generally understood code of rules and etiquette of surfers which, according to Olson’s expert, include:

(1) observe the right of way of others; (2) look for other surfers before entering the wave; (3) do not interfere with, “drop in” or cut off surfers already riding a wave; (4) hold onto and do not let go of your board; (5) wear a surf leash so you do not lose control of your board; and (6) be aware and communicate with others around you.

Olson v. Saville, 2024 Cal. App. LEXIS 25, *9

Olson was struck by Saville, knocked off his board and subsequently cut when Saville’s unleashed board with a sharp fin hit him.

As a quick reminder, the primary assumption of the risk doctrine essentially holds that:

Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others, some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.

Olson argued that, due to the recklessness of Saville’s actions, and his failure to follow the generally accepted rules of etiquette of surfers, Saville made the activity of surfing more dangerous and increased the risk of injury inherent in the sport.  Olson argued that, due to the recklessness of Saville’s actions, the injuries sustained by Olson were not inherent to the sport of surfing.

The trial court disagreed and granted Saville’s motion for summary judgment after finding that Olson assumed the risk of his injuries which were inherent to the sport of surfing.  Olson appealed.

On Appeal, the Court of Appeal for the Second District noted that, according to Saville’s uncontested expert opinion:

surfing is an “extreme sport” with “many inherent risks.” … it is “extremely common for surfers to ‘wipe out’” and lose control of their board given the variability of ocean conditions. “Because ‘wipeouts’ are so common, it is a known risk that a surfer may collide with another surfer, or another surfer’s board.” …the sport is largely regulated by unwritten safety customs and practices he referred to as “‘surfing etiquette.’”… Nonetheless, “violating this surfing etiquette is common among surfers.” … it is “not uncommon for surfers to surf without a leash” and “[m]any longboard surfers particularly enjoy the challenge and freedom of surfing without a leash” which otherwise could interfere with their footwork and speed. Lastly, Cairns noted that surfboards “contain between one and four fins, which assist the board with speed and stability” and that the fins are “very sharp and can inflict significant injury.”

Olson v. Saville, 2024 Cal. App. LEXIS 25, *7-8

As a result, the Court of Appeal ultimately affirmed the lower’s court’s ruling holding:

[1]-The doctrine of primary assumption of the risk barred liability for injuries caused by a negligent surfer to a fellow surfer because those injuries were caused by risks inherent in surfing. Plaintiff’s expert did not oppose the core components of a defense expert’s opinion. Plaintiff’s expert did not dispute that surfers often violate surfing etiquette. The experts appeared to agree that surfers commonly collide and lose control of their boards; that boards have sharp fins that can cause injury; and that some surfers choose to forego leashes because they can inhibit speed and agility;

[2]-Even though defendant was surfing without a leash and used a longboard with a sharp fin, there was no evidence that defendant acted recklessly or increased the inherent risks of surfing. The undisputed evidence showed that failure to follow surfing etiquette is common among surfers.

If you or a loved one has been injured in any type of sporting incident, contact the experienced attorneys at Heiting & Irwin who have decades of experience handling injury claims.  Call us at (951) 682-6400 for a free consultation or visit us online at

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