Happens to Occy, too. Photo: Screenshot
We’ve all been dropped in on. And let’s be honest, we’ve all dropped in on others (hopefully on accident). It can be seen at any beach, any day, anywhere around the world. However, one drop in on July 5, 2018 had resounding effects that led to a lawsuit, pitted surf legends Shaun Tomson and Ian Cairns against each other, and, ultimately, resulted in a legal ruling that a surfer should assume that getting dropped in on is an inherent risk of the sport. A surfer who drops in without intent to cause harm, but injures another surfer, will not be held legally responsible. That’s the precedent that has been set in California.
The whole debacle took place in just a few seconds on a summer day in the Santa Barbara suburb of Montecito, California. Mark Olson, a surfer in his 50s, was dropped in on by Patrick Saville, a surfer in his 60s. Both had decades of surfing experience. However, as Olson maneuvered to avoid Saville on the wave, he fell, and Saville’s longboard, which was not attached to him with a leash, hit Olson. Olson was left with a deep laceration on his back/torso area.
Saville helped the injured Olson get to the beach, where a friend of Olson’s, Dorian Avery, described that the wound “looked like he had been cut open by a filet knife.”
Two years later, Olson sued Saville for personal injury and damages. Olson lost the first round as the judge determined that drop ins and the sharp fins of longboards – even without a leash – are inherent risks in the sport. Then last month, in January 2024, the case was heard by an appellate court in Santa Barbara County and the judge, once again, ruled in favor of the defendant, Saville.
The court battle took a bizarre turn as both sides enlisted surfing legends as key experts to support their cases. The plaintiff’s team recruited the 1977 South African world champion Shaun Tomson, while the defense enlisted Ian Cairns, the Australian founder of the Association of Surfing Professionals (ASP, later to become the WSL). Both now reside in California.
In support of the plaintiff, Tomson explained the etiquette of surfing. He detailed the right of way, looking before you drop, not dropping in on others, not letting go of your board, wearing a leash to not put others in danger, and being aware of and communicating with surfers around you. Tomson called the defendant’s inattention of the rules a “conscious and wanton reckless disregard” for the safety of other surfers.
On the other hand, Cairns’ expert opinion explained that surfing is a dangerous, risky sport, wipeouts are commonplace, and it’s quite normal that surfers break the etiquette that Tomson described. He also said that many longboarders “enjoy the challenge and freedom of surfing without a leash” because the leash can interfere with speed and walking the board.
The principle reason the court sided with the defendant was due to the “primary assumption of risk doctrine,” which “precludes liability for injuries arising from those risks deemed inherent in a sport.” In order to hold the defendant culpable for the damage caused, the plaintiff would have had to prove that the defendant intentionally injured him or acted in such a reckless manner as to be “totally outside the range of the ordinary activity involved in the sport.”
The doctrine has been used before to side with defendants in other sports, like snow skiing and golf, but this is the first time it has been applied to surfing.
So, the judge deemed drop ins as an inherent part of surfing. And if they are an accident, that’s no one’s problem – at least in a California court of law.
Some are not happy with the decision. A Los Angeles-based lawyer and former surfboard shaper, Vic Otten, is worried about the precedent this ruling sets. “The ruling may have the unintended consequence of emboldening the practice of kooks who ‘shoulder-hop’ and ‘burn’ other generally more experienced surfers who have the right of way on a wave,” Otten told Slate. “People who follow the rules of the sport may be denied access to the courts when they are injured by someone who can only catch a wave by dropping in on a surfer who has the right of way – or, as in the case of localism, a person who feels that outsiders should not surf at a local spot.”
Regardless of how you feel, next time you see a surfer dropping in on you down the line, choose your next moves carefully, as they may not be held liable for any injuries you sustain.
