Record

Appellant Michael Guy Record was injured falling off an inner tube while being towed behind a motor boat driven by respondent *475 Brian Reason. The trial court concluded that appellant’s claim was subject to primary assumption of risk and granted summary judgment in favor of respondent. At the same time, the court denied appellant permission to amend the complaint to assert a cause of action for reckless or intentional behavior. We affirm.

Factual and Procedural Background

On June 18, 1994, appellant accompanied respondent Brian Reason, Patrick Lynch, and Robbi Perron for a day of waterskiing and “tubing”— riding an inner tube towed by a motor boat — at Castaic Lake, using a tube owned by respondent and a motor boat jointly owned by respondent, Lynch, and Brian Heberling who was not present. During that afternoon, appellant began a tube ride while respondent was driving. Lynch and Perron were seated in the back of the boat acting as “spotters” to watch appellant and, if he fell off the tube, to notify respondent and raise a red flag to inform other boaters that someone was in the water. As respondent was turning the boat to the left, appellant spilled from the tube. He…

I respectfully dissent. Contrary to the approach taken by the majority, I believe decisional law permits the parties to a sporting activity to agree to limit or reduce the possibility of injury by subjecting the activity to various restrictions and thereby impose a duty of care upon the participants. The record indicates a material dispute exists as to whether the parties made such an agreement in this case. Therefore, the majority errs in concluding that this lawsuit can be resolved by summary judgment.

Appellant’s opposition to respondent’s motion for summary judgment included excerpts of his own deposition testimony and that of respondent Reason, and the declarations of Robbi Perron, a third party witness who was a spotter on the ski boat on the day of the accident, and of Dr. Glen H. Egstrom, an expert witness in aquatic kinesiology. In summary, appellant established the following material issues of fact to support his contention that respondent Reason had a duty to limit the inherent risks incurred in tubing:

(1) Respondent Reason and Patrick Lynch were aware that appellant was physically vulnerable and had suffered a previous back injury. As he was *488 getting on the…

Appellant Michael Guy Record was injured falling off an inner tube while being towed behind a motor boat driven by respondent Brian Reason. The trial court concluded that appellant's claim was subject to primary assumption of risk and granted summary judgment in favor of respondent. At the same time, the court denied appellant permission to amend the complaint to assert a cause of action for reckless or intentional behavior. We affirm.

On June 18, 1994, appellant accompanied respondent Brian Reason, Patrick Lynch, and Robbi Perron for a day of water-skiing and "tubing"—riding an inner tube towed by a motor boat—at Castaic Lake, using a tube owned by respondent and a motor boat jointly owned by respondent, Lynch, and Brian Heberling who was not present. During that afternoon, appellant began a tube ride while respondent was driving. Lynch and Perron were seated in the back of the boat acting as "spotters" to watch appellant and, if he fell off the tube, to notify respondent and raise a red flag to inform other boaters that someone was in the water. As respondent was turning the boat to the left, appellant spilled from the tube. He sustained a spinal injury requiring…