Defendants awarded attorney fees in California cycling race. One unique argument was raised; the plaintiff signed the release on the wrong line

Plaintiff sued for her injuries she occurred when she crashed with male rider in the race. The release she signed was upheld including the provision that the plaintiff pay the defendant’s costs and fees if they won the case.

Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

State: California; Court of Appeal of California, Second Appellate District, Division Eight

Plaintiff: Judith Kendall

Defendant: for USA Cycling, Inc. and Huntsman World Senior Games

Plaintiff Claims: Release not valid

Defendant Defenses: Release

Holding: for the defendants

Year: 2005

The legal issues in this case are not ground breaking, except for where the plaintiff signed the release. The court did a good job of explaining the reasoning for opposing the plaintiff’s arguments on why the release should be thrown out. However, the court did award attorney fees to the defendant for having to defend this case as per the release.

The plaintiff was cycling in the defendant Huntsman World Senior Games. The race was in Utah, and the plaintiff lived in California. To enter the race, the plaintiff signed a release for USA Cycling, and one for the Huntsman race.

The race was started at different starting times for the different categories and sexes of racers. Senior female racers started first with senior male racers starting five minutes later. During the race, a male racer overtook the plaintiff, and they tangled with the plaintiff falling and receiving injuries.

The plaintiff sued for her injuries and the two defendants, USA Cycling and the Huntsman filed motions for summary judgment based on the releases the plaintiff had signed. The trial court granted the defendant’s motion. One of the releases, the USA Cycling release included a provision that said the plaintiff if she sued would pay the defendant’s attorney fees and costs. The judge awarded $32,000 in fees against the plaintiff also.

The plaintiff appealed the dismissal and the award of attorney fees.

Analysis: making sense of the law based on these facts.

The first issue the plaintiff argued was the court should have applied Utah’s law to the case because that is where the accident occurred. (Remember the plaintiff started the lawsuit in California.) In order to determine what law that is to be applied to a case, the court must first look at whether or not there is a difference between the laws of the two states, California and Utah.

The plaintiff argued that Utah’s law was different because it prohibited cycling road races. However, the court investigated this claim and found that bicycle races were not prohibited; they only had to have the requisite permits. The permit process did not affect the facts in this case according to the judge, only traffic control so this issue had no effect on the outcome of the case.

Outside of traffic effects, and the concomitant general safety concerns whenever bicycles and motor vehicles are in close proximity, nothing within the permitting scheme suggests Utah authorities concerned themselves with a race’s details beyond its being “reasonably safe” for all concerned. Nothing hints that the approval of Utah authorities depended on the number of riders, their gender, or their starting times

The plaintiff also brought up that Utah treats releases differently. However, the court found although that may be true, the release in question would pass muster both in Utah and California so this issue was also not going to affect the outcome of the case.

But even if suspicion of preinjury releases existed in Utah law, the releases here would pass muster. Hawkins noted that Utah permits preinjury releases except when the activity affects the public interest. The Hawkins court explained, “It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty . . . . Thus, most courts allow release of liability for prospective negligence, except where there is a strong public interest in the services provided.”

The court then looked into the requirements for a release to be valid.

The elements of a valid release are well established. First, it must be clear and unambiguous. Second, it must not violate public policy-an element we can quickly pass over here because a release covering recreational sports is not against public policy or the public interest. [bicycle racing does not involve public interest].) And third, the injury at issue must be reasonably related to the release’s object and purpose.

The plaintiff then argued the USA Cycling release was ambiguous because it had two signature lines. One line was for racers, and one line was for the parents of racers if the racer was a minor. The plaintiff signed the wrong line, signing as a parent for a racer.

Kendall’s assertion that the USA Cycling release was ambiguous turns on its placement of two signature lines: a signature line for the entrant, and, if the entrant were a minor, a signature line for the minor’s parent or guardian. Kendall signed on the parent’s line, not, as one might suppose, the entrant’s line. She argues her signature’s placement makes the release ambiguous.

This is a unique and new argument I’ve never seen before in arguing the validity of a release. It may be something to look for in the future, as some states may not rule the same as this court.

This argument did not matter also because the plaintiff could not argue that signing at the wrong place on a contract invalidated the release. Nor could she argue that she intended to sign the release to enter the event.

She offers no explanation to challenge the obvious inference that she simply misplaced her signature. She does not deny that she wanted to enter the race, and does not dispute that she needed to sign the form to be allowed in. Never does she claim she was signing on a minor’s behalf. In short, she offers no interpretation of her signature’s placement on the parental consent line other than her innocent mistake. As such, her signature is not susceptible to more than one interpretation.

The plaintiff then argued that the release should be viewed based on her intent, not the subjective intent. Again, the court rejected this argument finding that her intent was to sign the release to enter the race which required her to sign the release to do so.

Kendall notes that we must interpret the release by objective manifestations of her intent, not her subjective intent. Hence, according to her, it does not matter what she subjectively intended when she signed the release; what matters is the objective manifestation of her signature on the parental release line, which she argues compels us to find the release did not bind her (or at best was ambiguous) because she did not sign it as an entrant.

This argument rarely, if ever, works because the intent of a contract that is signed is evidenced by the contract. No other intent or even testimony on the intent can be taken except for what is found “within the four corners of the document.”

We conclude that the objective manifestation of Kendall’s intent cuts the other way. Although the face of the release shows she signed as a parent, she offers no explanation for her signature being there other than her desire to join the race. The objective manifestation of her intent, therefore, is she signed as an entrant-albeit on the wrong line.

In another interesting argument, actually a more interesting response the plaintiff argued the Huntsman release should be thrown out because it was ambiguous. (And possibly was.) However, the court said it did not matter because the USA Cycling release was enough.

We need not address possible drafting errors in the Huntsman release because the USA Cycling release covered all organizations involved in the race. The USA Cycling release stated it covered the “organizations . . . and their respective agents, officials, and employees through or by which the events will be held . . . .” Such language encompassed Huntsman, making Huntsman’s own release superfluous as to this point.

The plaintiff then argued she thought she would be in a women’s only race and by allowing men into the race the organizers substantially increased the risk. The court found this argument to miss the mark because the foreseeability issue was not whether it was foreseeable men would be in the race but whether or not it was foreseeable that she could crash.

Kendall contends the releases did not apply to her because she did not know or reasonably foresee she would be sharing the road with male racers in what she believed was a women-only race. She argues respondents thus wrongfully increased the risk she had assumed in entering an all-female race. Kendall’s focus on whether she could have foreseen colliding with a male racer misses the mark because foreseeability is irrelevant when a tortfeasor relies on an express, written release.

The court found this argument to miss the mark because the foreseeability issue was not whether it was foreseeable men would be in the race but whether or not it was foreseeable that she could crash.

For a written release, the focus instead is whether Kendall’s injuries related to the release’s object and purpose. When a risk is expressly assumed, the assumption is a complete defense against a negligence claim. Here, the release covered anyone participating in the Huntsman World Senior Games and included collisions with “other racers,” not just female racers. The release’s language thus covered Kendall’s accident.

On top of this, the plaintiff knew she would be on the same course as male racers. Additionally, being hit by another racer is inherent in bicycle racing.

Kendall received a race map and brochure when she submitted her race application. Those documents showed men and women would be using the same road course, and would be segregated by age, but not sex. That Kendall apparently chose not to read the documents (an inference we draw from her professed ignorance that men would be on the same course) does not make male racers unforeseeable or the scope of the release narrower. Moreover, the court here found the risk of being hit by another racer is inherent to bicycle racing.

The final issue was the award of attorney fees to the defendants as based on the language in the release.

The plaintiff argued that the award of attorney fees should be denied because only the USA Cycling release that the attorney fee award language in it, therefore, the issue should be thrown out. “Kendall notes that only the USA Cycling release had an attorney’s fee provision. She contends that even if USA Cycling is entitled to its fees, the motion should have been denied as to Huntsman.”

The plaintiff also argued the attorney fees should be thrown out because the award was for two releases and only one awarded attorney fees. The amount should be reduced for the work down for the release that did not have the language in the release.

Neither argument prevailed. The same law firm defended both motions and the work to defend both motions was indistinguishable from one motion to the other. The legal and factual issues in defending both releases overlapped legally and factually. It would be impossible to separate out the work, and the law does not require it.

Kendall filed one complaint against respondents, to which they replied with a shared answer and defeated with a shared motion for summary judgment. The evidence and legal arguments in support of respondents’ motion for summary judgment overlapped substantively and procedurally. The record does not show that respondents’ counsel would have spent any less time or that its arguments would have been any different if only USA Cycling had been a defendant. Because it is not fatal to a fee award if apportionment between issues and arguments is difficult, or even impossible, the court did not abuse its discretion in awarding fees for counsel’s work representing USA Cycling and Huntsman.

The dismissal of the complaint based on a release, the USA Cycling release, and the award of attorney fees and costs was upheld by the California Appellate Court.

So Now What?

There were some interesting issues in this case. Two releases are always a possible way to lose a case, as well as win one in this case. (See Too many contracts can void each other out; two releases signed at different times can render both releases void.) In fact, the race organizer should be happy his race was a USA Cycling release, or he may have been writing a check.

The award of attorney fees is rare, and arises occasionally. (Federal Court in Texas upholds clause in release requiring the plaintiff to pay defendants costs of defending against plaintiff’s claims.) Only California does not quibble about the specific language in the release. Most courts discourage the award of legal fees in release cases and examine the language in the document to find anyway not to award the fees.

At the same time, but for the USA Cycling release, this case would have gone the other direction.

What do you think? Leave a comment.

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Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

Judith Kendall, Plaintiff and Appellant, v. USA Cycling, Inc. et al., Defendants and Respondents.

B168004

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT

2005 Cal. App. Unpub. LEXIS 5025

June 8, 2005, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from judgments of the Superior Court of Los Angeles County, No. BC 259296. Jon M. Mayeda, Judge.

COUNSEL: Gelfand and Gelfand, Robert E. Fisher, Gary B. Gelfand, and Raymond J. Feinberg for Plaintiff and Appellant.

Manning & Marder, Kass, Ellrod, Ramirez, Anthony J. Ellrod and Sylvia Havens for Defendants and Respondents.

JUDGES: RUBIN, J.; COOPER, P.J., FLIER, J. concurred.

OPINION BY: RUBIN

OPINION

Judith Kendall appeals from the summary judgment and attorney’s fee award entered for USA Cycling, Inc. and Huntsman World Senior Games in her negligence lawsuit against them. We affirm.

FACTS AND PROCEDURAL HISTORY

In October 2000, Judith Kendall was 59 years old and living in California when she entered a bicycle road race in Utah. The race was part of the Huntsman World Senior Games (Huntsman), organized and sponsored by Huntsman and USA [*2] Cycling, Inc. To participate in the race, Kendall, who had in the previous ten years ridden in about 30 bicycle races, tours, and endurance events, signed two release and waiver forms. The Huntsman release stated:

Recitals [P] I, the undersigned, acknowledge and fully understand that by participating in the World Senior Games, Inc. I will be engaging in activities or competition that may involve serious risks including bodily injury, permanent disability and death . . . which might result not only from my own actions, inactions or negligence, but the actions, inactions or negligence of others . . .; and that there may be other risks not known or not reasonably foreseeable. [P] . . . [P] Assumption of Risks. Except as otherwise specifically agreed herein, I assume all of the risks described in the Recitals section above and accept personal responsibility for any and all damages of any kind resulting from any injury, permanent disability and/or death. [P] Release of Liability. I hereby release, waive all claims of liability against, discharge and hold harmless the World Senior Games, Inc., its affiliated organizations, [and] its sponsors, including [*3] but not limited to Huntsman Corporation . . . from any and all liability of the undersigned, my heirs and next of kin, for any claims, demands, causes of action, losses or damages, on account of bodily injury [or] death . . . caused or alleged to be caused in whole or in part by the negligence of the persons or entities hereby released, and/or by the negligence of other participants . . . in connection with my participation in the World Senior Games events or activities.”

The USA Cycling release stated:

“I acknowledge that cycling is an inherently dangerous sport and fully realize the dangers of participating in a bicycle race and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the following: the dangers of collision with . . . other racers . . .; THE RELEASEES’ OWN NEGLIGENCE; . . . and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition. [P] . . . I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT SUE organizations . . . and their respective agents, officials, and employees through or by which the events will be [*4] held, (the foregoing are also collectively deemed to be Releasees), FROM ANY and all rights and CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, which I have or which may hereafter accrue to me and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event . . . .”

The race began at the appointed time, with Kendall and her female competitors starting first, followed five minutes later by the senior male racers. During the race, a male racer overtook Kendall and, in passing her, their bike wheels tangled. Kendall vainly struggled to keep her balance, but fell and suffered severe injuries.

Kendall sued USA Cycling Inc. and Huntsman for negligence in starting the men’s race on the same road five minutes after the women’s race began. Huntsman and USA Cycling moved for summary judgment, arguing that even if they had been negligent, the waiver and releases were a complete defense barring Kendall’s complaint. The court agreed, and entered judgment for respondents.

Respondents moved under the attorney’s fee clause of the USA Cycling release to recover more [*5] than $ 32,000 in attorney’s fees. 1 Kendall opposed the motion, claiming respondents had not supported it with sufficient admissible evidence. She also opposed any fee award for Huntsman in particular because the Huntsman release did not have an attorney’s fee clause. In response, the court ordered respondents to support their motion with detailed billing statements. After respondents filed their billing statements, the court overruled Kendall’s evidentiary objections and awarded respondents slightly less than $ 32,000 in fees. Kendall appeals from the judgment and the fee award.

1 Respondents also sought and recovered their costs, but those costs are not at issue in this appeal.

DISCUSSION

Kendall contends the court erred when it enforced the releases. She attacks the releases on several grounds. None is persuasive.

1. Utah Law Did Not Apply

Kendall contends the court erred by not applying Utah law to reject the releases. Her contention raises the question of which state’s laws apply: [*6] Utah-where the injury occurred-or California-where Kendall lives and filed suit. Under governing choice of law principles which weigh Utah’s and California’s governmental interests in seeing their laws enforced, we first consider whether a material difference exists between the two states’ laws. If their laws do not differ, we need not address whether Utah law applies, and may instead look solely to California law. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919-920; Reich v. Purcell (1967) 67 Cal.2d 551, 555, 63 Cal. Rptr. 31; Tucci v. Club Mediterranee (2001) 89 Cal.App.4th 180, 189.)

Kendall asserts two material differences exist between Utah and California law that are important to her lawsuit against respondents. The central difference, according to her, is Utah prohibits bicycle road races. It follows, she argues, that Utah would not enforce the releases because they violate public policy by waiving liability for an unlawful activity. Kendall’s contention fails, however, because she mischaracterizes Utah law. Utah does not ban bicycle road races outright; instead, it merely requires that organizers of a [*7] road race get permission from state or local highway officials for the race. The pertinent Utah statute states, “(1) Bicycle racing on highways is prohibited . . . except as authorized in this section. [P] (2) Bicycle racing on a highway is permitted when a racing event is approved by state or local authorities on any highway under their respective jurisdictions. . . .” (Utah Code Annotated (1953) 41-6-87.9.) Kendall cites no evidence that respondents did not get permission for the race, and indeed all the evidence in the record which touches on the subject points the other way.

But, even if the absence of a permit in the record means the race was unpermitted, the result would not change. The permit’s purpose is traffic control, not micromanaging the particulars of how the race is conducted. In its entirety, the statute states,

“(1) Bicycle racing on highways is prohibited under Section 41-6-51, except as authorized in this section. [P] (2) Bicycle racing on a highway is permitted when a racing event is approved by state or local authorities on any highway under their respective jurisdictions. Approval of bicycle highway racing events may be granted only under conditions which [*8] assure reasonable safety for all race participants, spectators, and other highway users, and which prevent unreasonable interference with traffic flow which would seriously inconvenience other highway users. [P] (3) By agreement with the approving authority, participants in an approved bicycle highway racing event may be exempted from compliance with any traffic laws otherwise applicable, if traffic control is adequate to assure the safety of all highway users.”

Emphasizing the focus on traffic, the statute cross-references only one section in the Utah Administrative Code. That regulation, entitled “Permit Required for Special Road Use or Event: Special Road Use,” states in its entirety that the Utah Department of Transportation:

“. . . shall promote safe utilization of highways for parades, marathons, and bicycle races. Special Road Use permits shall be required for any use of state routes other than normal traffic movement. Permits may be obtained by fulfilling requirements of DOT [Department of Transportation] form ‘Special Road Use Permit’. Policy applies to all routes under jurisdiction of DOT. Permittee shall hold DOT harmless in event of litigation. A traffic control plan, [*9] in accordance with latest edition of the Manual on Uniform Traffic Control Devices and Barricading and Construction Standard Drawings, shall be provided to, and approved by Dept. District Traffic Engineer or Permittee shall restore the particular road segment to its original condition, free from litter, etc. All applications for permits shall be made a minimum of 15 days prior to the specified activity.” (UT ADC R920-4-1)

Outside of traffic effects, and the concomitant general safety concerns whenever bicycles and motor vehicles are in close proximity, nothing within the permitting scheme suggests Utah authorities concerned themselves with a race’s details beyond its being “reasonably safe” for all concerned. Nothing hints that the approval of Utah authorities depended on the number of riders, their gender, or their starting times. Thus, Kendall’s injuries were not within the scope of the permitting statute’s purpose. Consequently, there was no legal nexus between the statutory violation of an unpermitted race (assuming that occurred) and Kendall’s damages.

A second difference, according to Kendall, between Utah and California law is Utah views preinjury liability releases more [*10] skeptically than does California. In support, she cites Hawkins ex rel. Hawkins v. Peart (Utah 2001) 2001 UT 94, 37 P.3d 1062 (Hawkins). That decision refused to enforce a preinjury release signed by a parent for her child because Utah expressly prohibits parents from signing away their children’s rights. (Id. at pp. 1065-1066.) In its discussion, Hawkins noted courts must scrutinize preinjury releases to make sure they are fairly bargained. (Id. at p. 1066.) Hawkins does not, however, as Kendall states, prohibit preinjury releases.

But even if suspicion of preinjury releases existed in Utah law, the releases here would pass muster. Hawkins noted that Utah permits preinjury releases except when the activity affects the public interest. The Hawkins court explained, “It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty . . . . Thus, most courts allow release of liability for prospective negligence, except where there is a strong public interest in the services provided.” (Hawkins, supra, 37 P.3d at p. 1065, [*11] fn. omitted; see also Russ v. Woodside Homes, Inc. (Utah App. 1995) 905 P.2d 901, 905 [preinjury releases lawful in Utah].) Kendall cites no authority, and we know of none, that a voluntary recreational activity such as a bike race implicates the public interest.

In sum, Kendall’s two examples of differences between Utah and California law are unavailing. Accordingly, the trial court did not err when it applied California law below. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919-920; Reich v. Purcell, supra, 67 Cal.2d at p. 555; Tucci v. Club Mediterranee, supra, 89 Cal.App.4th at p. 189.)

2. The Releases Are Enforceable

The elements of a valid release are well established. First, it must be clear and unambiguous. Second, it must not violate public policy-an element we can quickly pass over here because a release covering recreational sports is not against public policy or the public interest. (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739 (Lund); Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1373 (Allan); Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 [*12] [bicycle racing does not involve public interest].) And third, the injury at issue must be reasonably related to the release’s object and purpose. (Lund, at pp. 738-739; Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 757.) Kendall contends the USA Cycling and Huntsman releases are unenforceable because (1) they are ambiguous, and (2) did not cover the risk of her sharing the road with male racers.

a. Not Ambiguous

Kendall’s assertion that the USA Cycling release was ambiguous turns on its placement of two signature lines: a signature line for the entrant, and, if the entrant were a minor, a signature line for the minor’s parent or guardian. Kendall signed on the parent’s line, not, as one might suppose, the entrant’s line. She argues her signature’s placement makes the release ambiguous.

The test for ambiguity is whether Kendall’s placement of her signature is reasonably susceptible to more than one interpretation. (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) She offers no explanation to challenge the obvious inference that she simply misplaced her signature. She does not deny that she wanted to enter [*13] the race, and does not dispute that she needed to sign the form to be allowed in. Never does she claim she was signing on a minor’s behalf. In short, she offers no interpretation of her signature’s placement on the parental consent line other than her innocent mistake. As such, her signature is not susceptible to more than one interpretation.

Kendall notes that we must interpret the release by objective manifestations of her intent, not her subjective intent. Hence, according to her, it does not matter what she subjectively intended when she signed the release; what matters is the objective manifestation of her signature on the parental release line, which she argues compels us to find the release did not bind her (or at best was ambiguous) because she did not sign it as an entrant.

We conclude that the objective manifestation of Kendall’s intent cuts the other way. Although the face of the release shows she signed as a parent, she offers no explanation for her signature being there other than her desire to join the race. The objective manifestation of her intent, therefore, is she signed as an entrant-albeit on the wrong line. (Lopez v. Charles Schwab & Co., Inc. (2004) 118 Cal.App.4th 1224, 1233-1234 [*14] [“The test is ‘what the outward manifestations of consent would lead a reasonable person to believe.’ [Citation.]”].)

Kendall’s reliance on Roth v. Malson (1998) 67 Cal.App.4th 552 (Roth), does not change the result because the facts are distinguishable. Roth involved a real estate sale agreement with two signature lines: one to accept the agreement and one to make a counteroffer. The real estate buyer signed on the counteroffer line and returned the agreement to the seller. The seller rejected the ostensible “counteroffer” and sold the property to someone else. The buyer sued to enforce the agreement, claiming he had signed on the counteroffer line by mistake, and had intended to sign on the acceptance line. He argued his signature was subject to no reasonable interpretation other than an acceptance because he did not add any new conditions to the counteroffer, meaning the counteroffer was not truly a counter. The Roth court rejected that argument, noting that divining the buyer’s intent as an acceptance with no new conditions would have required a time consuming comparison of the offers and counteroffers exchanged between the parties, a comparison [*15] no one was obligated to make. The court therefore refused to enforce the agreement because it was plausible the buyer intended to counter, instead of accept, the seller’s offer. (Id. at pp. 558-559.) Here, in contrast, Kendall offers no plausible explanation for her signature on the parental release line-in a senior’s race no less-than that she intended her signature to show her acceptance of the release’s terms.

Kendall contends the Huntsman release is also ambiguous, and therefore cannot be enforced against her. In support, she notes language in the release suggests she was releasing herself as the release’s “undersigned” from any liability: “I hereby release, waive all claims of liability against, discharge and hold harmless the World Senior Games, Inc. [and others], . . . from any and all liability of the undersigned, my heirs and next of kin, for any claims, demands, causes of action, losses or damages . . . .” (Italics added.) We need not address possible drafting errors in the Huntsman release because the USA Cycling release covered all organizations involved in the race. The USA Cycling release stated it covered the “organizations . . . and their [*16] respective agents, officials, and employees through or by which the events will be held . . . .” Such language encompassed Huntsman, making Huntsman’s own release superfluous as to this point.

b. Injury Within Scope of Release

Kendall contends the releases did not apply to her because she did not know or reasonably foresee she would be sharing the road with male racers in what she believed was a women-only race. She argues respondents thus wrongfully increased the risk she had assumed in entering an all-female race. Kendall’s focus on whether she could have foreseen colliding with a male racer misses the mark because foreseeability is irrelevant when a tortfeasor relies on an express, written release. (Allan, supra, 51 Cal.App.4th at p. 1372.) For a written release, the focus instead is whether Kendall’s injuries related to the release’s object and purpose. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) When a risk is expressly assumed, the assumption is a complete defense to a negligence claim. (Allan, at p. 1372.) Here, the release covered anyone participating in the Huntsman World Senior Games and included collisions [*17] with “other racers,” not just female racers. The release’s language thus covered Kendall’s accident.

In support of limiting an express waiver to foreseeable risks, Kendall cites Bennett v. United States Cycling Federation (1987) 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55 (Bennett), a case involving a release in a bicycle race on closed roads where a car struck the plaintiff. Finding that the release applied only to obvious or foreseeable hazards, the Bennett court held it was a triable issue whether an automobile on the race course was a reasonably foreseeable risk within the scope of the release. (Id. at pp. 1490-1491.) Likening her collision with a male racer in what she thought was a female only race to a collision with a car on closed roads, Kendall argues she could not have reasonably foreseen respondents would permit male racers on the same course only five minutes after she started. We conclude that even if one accepts Bennett’s injection of foreseeability into an express written release (but see Madison v. Superior Court (1988) 203 Cal. App. 3d 589, 601, fn. 9, 250 Cal. Rptr. 299 [criticizing Bennett for confusing [*18] foreseeability with scope of release]), the result would not change here. Kendall received a race map and brochure when she submitted her race application. Those documents showed men and women would be using the same road course, and would be segregated by age, but not sex. That Kendall apparently chose not to read the documents (an inference we draw from her professed ignorance that men would be on the same course) does not make male racers unforeseeable or the scope of the release narrower. Moreover, the court here found the risk of being hit by another racer is inherent to bicycle racing. The Bennett court itself notes the foreseeability of such collisions. It stated: “There is little doubt that a subscriber of the bicycle release at issue here must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen. . . . these hazards include ‘collisions with other riders . . . .’ ” (Bennett, supra, 193 Cal. App. 3d at 1490; see also Buchan v. United States Cycling Federation, Inc., supra, 227 Cal. App. 3d at pp. 148, 151-152 [collisions and falls are foreseeable risk in bike racing]. [*19] ) The trial court thus did not err in concluding Kendall’s accident was legally foreseeable.

3. Attorney’s Fees

The trial court awarded respondents $ 31,978.50 in attorney’s fees. We review the award for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1119.)

Respondents supported their motion for fees with billing statements and a declaration by a partner in their counsel’s firm. The billing statements showed the hours worked, the rates charged, and the work done (with privileged information redacted). The partner stated he was familiar with how his firm generated its bills and that the fees stated on the bills had been incurred. Kendall contends the bills and declaration were inadmissible hearsay. Courts have held otherwise. The trial court is best placed to assess the appropriateness of the work done and the fees incurred. A verified bill on which the items appear proper is sufficient to support a fee award. (Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 624, 134 Cal. Rptr. 602.) Indeed, given a trial court’s first-hand familiarity [*20] with the work done by counsel, billing statements themselves can be superfluous. (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293 [“there is no legal requirement that [billing ] statements be offered in evidence. An attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.”].)

Kendall notes that only the USA Cycling release had an attorney’s fee provision. She contends that even if USA Cycling is entitled to its fees, the motion should have been denied as to Huntsman. In support, she cites Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541 (Super 7 Motel), for the proposition that a party in a multiple contract transaction involving several parties cannot recover its attorney’s fees unless its particular contract has a fee provision. (Id. at pp. 545-547.) Super 7 Motel is distinguishable, however, because its facts permitted allocation of the legal work and fees to the various parties. Super 7 Motel did not address fee awards when the legal work and fees cannot be allocated. Here, [*21] allocation appears difficult, if not impossible. Kendall filed one complaint against respondents, to which they replied with a shared answer and defeated with a shared motion for summary judgment. The evidence and legal arguments in support of respondents’ motion for summary judgment overlapped substantively and procedurally. The record does not show that respondents’ counsel would have spent any less time or that its arguments would have been any different if only USA Cycling had been a defendant. Because it is not fatal to a fee award if apportionment between issues and arguments is difficult, or even impossible, the court did not abuse its discretion in awarding fees for counsel’s work representing USA Cycling and Huntsman. (Liton Gen. Engineering Contractor, Inc. v. United Pacific Insurance (1993) 16 Cal.App.4th 577, 588 [no allocation of two parties’ liability required]; accord Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130, 158 Cal. Rptr. 1 [“Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.”); [*22] Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [multiple causes of action may be so intertwined that it would be “impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units.”].)

DISPOSITION

The judgment and fee award are affirmed. Each side to bear its own costs on appeal.

RUBIN, J.

We concur:

COOPER, P.J.

FLIER, J.


Sometimes you wish the defendant would lose when a fireman prevents a rescue by someone who probably could have saved the deceased’s life

At the same time, any claim for “negligent rescue” would put thousands of SAR volunteers at risk.

Decker, v. City of Imperial Beach, 209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEX-IS 301

State: California, Court of Appeal of California, Fourth Appellate District, Division One

Plaintiff: Glenn A. Decker

Defendant: City of Imperial Beach

Plaintiff Claims: Failure to properly rescue and failure to allow rescue

Defendant Defenses:

Holding: For the Defendants

Year: 1989

The deceased and a friend went surfing off the city beach. There were no lifeguards on duty because it was not summer. Lifeguards were only at work during the summer season. The defendant city does not provide lifeguards for the beach except in the summer.

The defendant’s leash for his surfboard got caught on a line for a lobster trap and he eventually drowned.

While the deceased was still alive several people attempted to assist the deceased until the fire department showed up. On the scene the Fire Chief ordered no more rescues.

An Imperial Beach firefighter, Olin Golden, who was a water safety instructor and life guard, contacted Hewitt about the situation and borrowed Hewitt’s wet suit and surfboard.  Imperial Beach Fire Chief Ronald Johnston ordered Hewitt and Golden and all other would-be rescuers to remain on the beach and not to attempt a rescue.

Eventually, the deceased died without being rescued and his body floated to shore. His mother sued the city for the botched rescue or actually no rescue. The trial court granted the cities motion for summary judgment.

This appeal then occurred.

Analysis: making sense of the law based on these facts.

The court first started looking at the requirements for summary judgment in California.

The aim of the summary judgment procedure is to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. “[The] trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment.

A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.

The city first argued that it owed no duty because surfing was a hazardous recreational activity and there was a statute that protected it from liability issues of such activities.

Government Code 2 section 831.7 provides a public entity is not “liable to any person who participates in a hazardous recreational activity . . .  for any damage or injury to property or persons arising out of that hazardous recreational activity.” Surfing is specifically included as a “hazardous recreational activity.” (§ 831.7, subd. (b)(3).)

In reviewing the statute the court found the legislature had you broad language in creating the statute in order to provide the broadest protection for the municipalities.

Instead, the Legislature used expansive language to describe the scope of the immunity, stating it applied to “any damage or injury to property or persons arising out of that hazardous recreational activity.” (Italics added.) This broad language is reasonably susceptible to an interpretation that it was intended to preclude liability for negligently inflicted injuries while rescuing a person who has been participating in a hazardous recreational activity since it can be said the rescue effort “arises out of” the individual’s participation in the hazardous recreational activity.

The court looked at the issues in the case and found the statute was created to encourage rescue. If any rescue was subject to litigation afterwards, no rescues would occur.

The act did seem to have an exception for gross negligence.

An interpretation of the hazardous recreational activities immunity to immunize public entities and their employees for acts of emergency rescue services unless there is gross negligence furthers the strong public policy encouraging rescues and emergency assistance.

However, no gross negligence claim was pled, and none was found in this case.

The court then looked at the Fire Chief “precluding other assistance.”

The facts show Imperial Beach firefighter Olin Golden borrowed Hewitt’s wet suit and requested permission to attempt a surf rescue of Gary.  Decker states Golden “was a water safety instructor and a life guard trained in surf rescue.” While Decker presented evidence showing Golden was a water safety instructor and lifeguard, nothing in the record indicates Golden was experienced in surf rescue. Rather, the record indicates Golden had given swimming lessons at a high school pool and had guarded the pool; this was the information known to the fire chief at the time he told Golden to stay on the beach. Under these circumstances, it cannot be said the fire chief’s refusal to allow Golden to attempt a surf rescue constituted gross negligence.

Here the court found the duty of the fire chief in precluding the rescue was based on protecting the rescuer. As such the acts of preventing a possible rescue were not grossly negligent.

The next argument made by the plaintiff, was, the rescue technique used was antiquated and prevented a proper rescue.

Decker presented testimony by Charles Chase, an experienced lifeguard supervisor.  Chase testified about the rescue method used by the Sheriff’s dive team (sending out a diver tethered to a rope) as follows: “A life line type rescue is used in special circumstances, but it would never be used with a strong side current [as was the case here] and it would never be used if you could get there quicker in a better way, and it’s a specialized form of rescue. Years and years ago the life line rescue was quite common, and that was prior to the use or the availability of, say, fins and also the availability of good swimmers.  If you go back to the 20’s, they had a limited amount of people that could swim as well as a lot of people can swim now and fins weren’t available.”

The court found the technique was disfavored, but did not rise to the level of gross negligence in this case.

This testimony could support a finding that use of the lifeline rescue method is a disfavored surf rescue method and would not be used by an experienced, trained surf rescuer but it does not support a finding the sheriff’s dive team was grossly negligent for having used this method given their lack of training or experience in surf rescue.

Finding no gross negligence on the part of the fire chief or the fire department the appellate court upheld the trial court’s granting of the motion for summary judgment.

So Now What?

This is one of those cases that frustrated the heck out of me. Yet, overall, in hundreds of other situations, this is the good outcome. It will save a lot more other people because rescuing someone will not be a liability nightmare.

This is how the law is to be applied both as it applies to the individual parties who are in the case and future litigants, searches and victims of the city.

Sad, but true.

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Decker, v. City of Imperial Beach, 209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEXIS 301

Decker, v. City of Imperial Beach, 209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEXIS 301

Glenn A. Decker, Plaintiff and Appellant, v. City of Imperial Beach, Defendant and Respondent

No. D007375

Court of Appeal of California, Fourth Appellate District, Division One

209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEXIS 301

April 4, 1989

PRIOR HISTORY: [***1]

Superior Court of San Diego County, No. 526147, Andrew G. Wagner, Judge.

DISPOSITION: The judgment is affirmed.

COUNSEL: Schall, Boudreau & Gore, W. Lee Hill and Robert J. Trentacosta for Plaintiff and Appellant.

Hollywood & Neil and Anton C. Gerschler for Defendant and Respondent.

JUDGES: Opinion by Kremer, P. J., with Nares, J., concurring. Separate concurring and dissenting opinion by Wiener, J.

OPINION BY: KREMER

OPINION

[*352] [**357] Glenn A. Decker appeals a summary judgment in favor of the City of Imperial Beach on his complaint for the wrongful death of his son, Gary Decker. On appeal, Decker contends the court erred in finding Imperial Beach was immune from liability because the death arose out of Gary’s participation in a “hazardous recreational activity” and in finding no “special relationship” existed between Gary and Imperial Beach. We conclude the trial court properly granted summary judgment and therefore affirm.

Facts

Around 5:30 p.m. on March 15, 1984, Gary and his friend Victor Hewitt went surfing off the 1600 block of Seacoast Drive in Imperial Beach. There were no lifeguard services provided at this beach during the nonsummer months. Soon after Gary entered the water, Gary’s surfboard leash became [***3] entangled in a nylon rope tether connecting a submerged lobster trap to a small floating surface buoy.

Bystanders noticed Gary appeared to be in trouble. They contacted Hewitt and called the county sheriff’s department. Hewitt twice attempted to paddle out to Gary on his surfboard to render assistance, but was unable to reach him. The sheriff’s department, which provided law enforcement support to Imperial Beach, called the City of Imperial Beach Fire Department to assist at the scene. Both agencies responded to the beach. 1 An announcement by bullhorn was made to Gary, telling him “help [was] on the way.”

1 Imperial Beach, in its brief, seems to suggest it had no liability because only county employees (i.e., sheriff department deputies) were involved. The record indicates, however, that the Imperial Beach Fire Department responded to the scene and participated in the rescue operation and that Imperial Beach contracted with the sheriff’s department to provide police services to the city. Thus, liability cannot be precluded on this basis.

An Imperial Beach firefighter, Olin Golden, who was a water safety instructor and life guard, contacted Hewitt about the situation and [*353] borrowed [***4] Hewitt’s wet suit and surfboard. Imperial Beach Fire Chief Ronald Johnston ordered Hewitt and Golden and all other would-be rescuers to remain on the beach and not to attempt a rescue.

At about 6:45 p.m., an ASTREA helicopter arrived and hovered over Gary for 15 to 20 minutes, shining a bright light on him. Eventually, a helicopter rescue was rejected. The sheriff’s dive team attempted to rescue Gary by tying a rope around one diver’s waist and anchoring him to the shore while he waded into the surf. There was evidence that this was an antiquated method of surf rescue that has been abandoned because it is ineffective. Shortly [**358] after this rescue attempt, Gary’s surf leash became disentangled and he floated to shore, unconscious. All attempts to revive him failed. He was pronounced dead at University of California at San Diego Medical Center.

Discussion

I

Summary Judgment Standard

(1) [HN1] The aim of the summary judgment procedure is to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. ( Chern v. Bank of America (1976) 15 Cal.3d 866, 873 [127 Cal.Rptr. 110, 544 P.2d 1310]; Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851 [94 Cal.Rptr. 785, 484 P.2d 953].) [***5] “[The] trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” ( Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) (2) [HN2] In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183 [203 Cal.Rptr. 626, 681 P.2d 893].) The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. ( Lichty v. Sickels (1983) 149 Cal.App.3d 696, 699 [197 Cal.Rptr. 137].) (3) While “[summary] judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact” ( Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081 [228 Cal.Rptr. 620]), it is also true “[justice] requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good [***6] one.” ( Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507 [86 Cal.Rptr. 744].) “A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action [*354] can prevail. [Citation.]” ( Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107.)

II

Hazardous Recreational Activities Immunity

(4a) Imperial Beach argues it has no liability for Gary’s death because it arose out of Gary’s participation in a “hazardous recreational activity.”

[HN3] Government Code 2 section 831.7 provides a public entity is not “liable to any person who participates in a hazardous recreational activity . . . for any damage or injury to property or persons arising out of that hazardous recreational activity.” Surfing is specifically included as a “hazardous recreational activity.” (§ 831.7, subd. (b)(3).)

2 All statutory references are to the Government Code unless otherwise specified.

Decker argues section 831.7 does not bar his suit because Gary’s death was not “solely attributable” to surfing but was also due to Imperial Beach’s conduct during the rescue and section 831.7 provides immunity only for injuries caused by the hazardous recreational activity [***7] itself.

(5) ” [HN4] ‘The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.]'” ( T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277 [204 Cal.Rptr. 143, 682 P.2d 338].) “In determining such intent, the court turns first to the words of the statute.” ( Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607 [224 Cal.Rptr. 631, 715 P.2d 590].) The court attempts to give effect to the usual, ordinary import of the language and seeks to avoid making any language mere surplusage. ( Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 219 [246 Cal.Rptr. 733, 753 P.2d 689].) The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. (Palos Verdes Faculty [**359] Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658-659 [147 Cal.Rptr. 359, 580 P.2d 1155].) (6) The various parts of a statutory enactment must be harmonized in context of the statutory framework as a whole. ( Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230-231 [110 Cal.Rptr. 144, 514 P.2d 1224]; [***8] Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 746 [250 Cal.Rptr. 869, 759 P.2d 504].) (7) The statute “. . . must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when [*355] applied, will result in wise policy rather than mischief or absurdity. [Citations.]” ( Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902 [231 Cal.Rptr. 128]; see also Webster v. Superior Court (1988) 46 Cal.3d 338, 344 [250 Cal.Rptr. 268, 758 P.2d 596].)

(4b) In defining the scope of the hazardous recreational activities immunity, the Legislature did not choose narrow language; the Legislature did not limit the immunity to injuries “solely attributable” to the hazardous recreational activity. Instead, the Legislature used expansive language to describe the scope of the immunity, stating it applied to “any damage or injury to property or persons arising out of that hazardous recreational activity.” (Italics added.) This broad language is reasonably susceptible to an interpretation that it was intended to preclude liability for negligently [***9] inflicted injuries while rescuing a person who has been participating in a hazardous recreational activity since it can be said the rescue effort “arises out of” the individual’s participation in the hazardous recreational activity.

Such an interpretation — that the immunity extends to rescue efforts, a foreseeable result of participating in a hazardous recreational activity — is consistent with the statutory scheme. Section 831.7 contains a number of exceptions to the rule of immunity. [HN5] Subdivision (c) of section 831.7 provides: “Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:

“(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.

“(2) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this paragraph, a ‘specific [***10] fee’ does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.

“(3) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement utilized in the hazardous recreational activity out of which the damage or injury arose.

[*356] “(4) Damage or injury suffered in any case where the public entity or employee recklessly or with gross negligence promoted the participation in or observance of a hazardous recreational activity. For purposes of this paragraph, promotional literature or a public announcement or advertisement which merely describes the available facilities and services on the property does not in itself constitute a reckless or grossly negligent promotion.

“(5) An act of gross negligence by a public entity or [***11] a public employee which is the proximate cause of the injury.

“Nothing in this subdivision creates a duty of care or basis of liability for personal injury or for damage to personal property.”

[**360] In reading the exceptions to the immunity, it is first apparent that the Legislature did not expressly exempt from the immunity liability for injuries caused by negligent rescue efforts. Liability for negligent conduct is provided for certain conduct by a public entity (failure to guard or warn of a known dangerous condition that is not reasonably assumed by a participant as an inherent part of the activity, sponsorship of a hazardous recreational activity by charging a fee, failure to maintain structures, equipment or improvements used in the activity) but not for a public entity’s conduct during a rescue.

[HN6] The language of subdivision (c)(5) of section 831.7 is sufficiently broad to encompass rescue activity. It states immunity is not limited for “[an] act of gross negligence by a public entity or a public employee which is the proximate cause of the injury.” (Italics added.) Clearly, the “act” delineated in this subdivision is not intended to duplicate those mentioned in the other immunity exemptions, [***12] i.e., a public entity’s promotion or sponsorship of a hazardous recreational activity, provision of improvements or equipment, or failure to warn of known risks which are not inherently a part of the sport. Among the most obvious other “acts” which would involve a public entity with hazardous recreational activity is the act of rescuing a person who has been injured by participation in a hazardous recreational activity.

An interpretation of section 831.7 that it was intended to grant immunity for emergency rescue services unless there is gross negligence is consistent with other statutes providing immunity to persons providing emergency assistance. The Legislature has enacted numerous statutes, both before and after the enactment of section 831.7, which provide immunity to persons providing emergency assistance except when there is gross negligence. (See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good faith renders emergency care at the scene of an emergency occurring outside the [*357] place and course of nurse’s employment unless the nurse is grossly negligent]; Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves on-call in a hospital emergency [***13] room who in good faith renders emergency obstetrical services unless the physician was grossly negligent, reckless, or committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for licensed physician who in good faith and without compensation renders voluntary emergency medical assistance to a participant in a community college or high school athletic event for an injury suffered in the course of that event unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706 [immunity for certified respiratory therapist who in good faith renders emergency care at the scene of an emergency occurring outside the place and course of employment unless the respiratory therapist was grossly negligent]; Bus. & Prof. Code, § 4840.6 [immunity for a registered animal health technician who in good faith renders emergency animal health care at the scene of an emergency unless the animal health technician was grossly negligent]; Civ. Code, § 1714.2 [immunity to a person who has completed a basic cardiopulmonary resuscitation course for cardiopulmonary resuscitation and emergency cardiac care who in good faith renders emergency cardiopulmonary resuscitation at the scene of an emergency [***14] unless the individual was grossly negligent]; Health & Saf. Code, § 1799.105 [immunity for poison control center personnel who in good faith provide emergency information and advice unless they are grossly negligent]; Health & Saf. Code, § 1799.106 [immunity for a firefighter, police officer or other law enforcement officer who in good faith renders emergency medical services at the scene of an emergency unless the officer was grossly negligent]; Health & Saf. Code, § 1799.107 [immunity for public entity and emergency rescue personnel acting in good faith within the scope of their employment unless they were grossly negligent].)

Further, there are policy reasons supporting an interpretation extending immunity to public entities for negligence occurring during the course of a rescue effort. It is a matter of strong public policy to [**361] encourage emergency assistance and rescue. Just three months after the incident involved here, the Legislature enacted Health and Safety Code section 1799.107 expressly granting immunity to emergency rescue personnel for any action taken within the scope of their employment to provide emergency services unless the personnel acted in bad faith or in a grossly [***15] negligent manner. ( Health & Saf. Code, § 1799.107, subd. (b).) In enacting this statute, the Legislature declared: “The Legislature finds and declares that a threat to the public health and safety exists whenever there is a need for emergency services and that public entities and emergency rescue personnel should be encouraged to provide emergency services.” ( Health & Saf. Code, § 1799.107, subd. (a).)

[*358] An interpretation of the hazardous recreational activities immunity to immunize public entities and their employees for acts of emergency rescue services unless there is gross negligence furthers the strong public policy encouraging rescues and emergency assistance.

We conclude summary judgment was properly granted to Imperial Beach on Decker’s cause of action for negligence.

III

(8a) The question remains whether Decker may recover on a theory of gross negligence pursuant to subdivision (c)(5) of section 831.7.

In Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197 [167 Cal.Rptr. 881], the court examined the meaning of the term “gross negligence”: “Prosser on Torts (1941) page 260, also cited by the Van Meter court [ Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 588 [297 P.2d 644]] [***16] for its definition of gross negligence, reads as follows: ‘Gross Negligence. This is very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. Many courts, dissatisfied with a term so devoid of all real content, have interpreted it as requiring wilful misconduct, or recklessness, or such utter lack of all care as will be evidence of either — sometimes on the ground that this must have been the purpose of the legislature. But most courts have considered that “gross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. So far as it has any accepted meaning, it is merely an extreme departure from the ordinary standard of care.’ (Italics added.)”

(9) [HN7] California courts require a showing of “‘the want of even scant care or an extreme departure from the ordinary standard of conduct'” in order to establish gross negligence. ( Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138 [181 Cal.Rptr. 732, 642 P.2d 792]; De Vito v. State of California (1988) 202 Cal.App.3d 264, 272 [248 Cal.Rptr. 330].) [***17] (10) Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence ( Pacific Bell v. Colich (1988) 198 Cal.App.3d 1225, 1240 [244 Cal.Rptr. 714]) but not always. ( De Vito v. State of California, supra, at p. 272.)

(8b) Decker argues Imperial Beach is liable because their rescue personnel responded to the scene within minutes in their official capacity to give aid to Gary; they took both actual and ostensible control of the rescue efforts, they required other would-be rescuers to remain on the beach, including firefighter Golden; and “[the] promise to ‘help’ arrived in the [*359] form of the Sheriff’s Department Dive Team which was not trained in surf rescue techniques” and used a technique which “was abandoned by life guards trained in surf rescue in the 1920’s.” Decker concludes: “Unfortunately, Gary Decker would have been better off if the City of Imperial Beach had not responded. Their presence (by creating the illusion of competent assistance and by preventing other rescue efforts) proved fatal to Gary.”

Precluding Other Assistance

The facts show Imperial Beach firefighter Olin Golden borrowed Hewitt’s wet [**362] suit and requested [***18] permission to attempt a surf rescue of Gary. Decker states Golden “was a water safety instructor and a life guard trained in surf rescue.” While Decker presented evidence showing Golden was a water safety instructor and lifeguard, nothing in the record indicates Golden was experienced in surf rescue. Rather, the record indicates Golden had given swimming lessons at a high school pool and had guarded the pool; this was the information known to the fire chief at the time he told Golden to stay on the beach. Under these circumstances, it cannot be said the fire chief’s refusal to allow Golden to attempt a surf rescue constituted gross negligence. Sending Golden, a person not known to be trained or experienced in surf rescue, into the water could have endangered Golden’s safety and been the basis for finding negligence had Golden been injured. Since the facts suggest negligence could be based on either the act or the omission, a finding of gross negligence by virtue of the omission is not warranted; the case is too closely balanced. In such a case, it cannot be said there is a “‘want of even scant care or an extreme departure from the ordinary standard of conduct.'”

This same reasoning [***19] applies even more strongly to the fire chief’s refusal to allow Hewitt or other bystanders to attempt a surf rescue. Hewitt had already demonstrated his lack of qualifications to rescue Gary; he had tried twice and failed both times. (11) As to other would-be rescuers, their training and experience was unknown and it certainly cannot be said that it is gross negligence to discourage persons with unknown qualifications from attempting a dangerous surf rescue.

Rescue Options

(8c) Decker presented testimony by Charles Chase, an experienced lifeguard supervisor. Chase testified about the rescue method used by the Sheriff’s dive team (sending out a diver tethered to a rope) as follows: “A life line type rescue is used in special circumstances, but it would never be used with a strong side current [as was the case here] and it would never be [*360] used if you could get there quicker in a better way, and it’s a specialized form of rescue. Years and years ago the life line rescue was quite common, and that was prior to the use or the availability of, say, fins and also the availability of good swimmers. If you go back to the 20’s, they had a limited amount of people that could swim as well as [***20] a lot of people can swim now and fins weren’t available.”

When asked why he thought the dive team was unable to reach Gary, Chase explained that “[the] buoyancy of the full dive suit would have made it hard to submerge one’s self and/or dive under the waves while you’re swimming out but also slow you down.” He stated the line tethering the diver to the shore would be pulled down by the side current, a “force which would impede the progress towards the rescue as far as getting to him.” When asked if he had any other opinions about why the attempts to reach Gary were unsuccessful, Chase responded: “Well, it would obviously be the lack of — the dive team’s lack of training in open surf conditions and what would have been a routine rescue for a lifeguard. I’d have to qualify that a little bit. The routine rescue meaning to reach the victim would have not been a difficult task at all. Whether they could have untangled the victim is — that’s hard to judge from a Monday morning quarterback type of situation.”

This testimony could support a finding that use of the lifeline rescue method is a disfavored surf rescue method and would not be used by an experienced, trained surf rescuer but it [***21] does not support a finding the sheriff’s dive team was grossly negligent for having used this method given their lack of training or experience in surf rescue.

Nor did Decker present evidence which would support a finding Imperial Beach was grossly negligent in its selection of rescue techniques, in particular, its failure to call off-duty lifeguards trained in surf rescue for assistance.

[**363] To the extent Decker seeks to impose liability based on Imperial Beach’s failure to adopt a policy requiring the training of firefighters and sheriff’s deputies in surf rescue or the calling of trained lifeguards for assistance, his claim must fail. The Legislature has provided immunity to public entities for such policy decisions. (§ 820.2; Nunn v. State of California (1984) 35 Cal.3d 616, 622 [200 Cal.Rptr. 440, 677 P.2d 846].)

Nor can a finding of gross negligence be premised on the failure of the Imperial Beach rescue personnel at the beach to call for the assistance of the off-duty lifeguards. First, the facts show the rescue personnel diligently pursued attempts to rescue Gary, both by helicopter and by use of the sheriff’s dive team. Decker presented no evidence contesting the validity of [***22] [*361] decision to first attempt a helicopter rescue. He does not claim the Imperial Beach rescue personnel were grossly negligent in calling for the helicopter or attempting to effectuate a rescue by helicopter. Decker appears to treat the helicopter rescue as a valid rescue method. Second, the record shows there were no existing procedures or centralized dispatcher available for contacting off-duty lifeguards. Thus, the rescue personnel cannot be said to have been grossly negligent for having failed to follow established procedures or for having failed to pursue a readily available option (i.e., the record indicates the lifeguards were not readily and easily accessible). (Compare Lowry v. Henry Mayo Newhall Memorial Hospital (1986) 185 Cal.App.3d 188, 196, fn. 7 [229 Cal.Rptr. 620, 64 A.L.R.4th 1191] [affirming summary judgment based on immunity under Health & Saf. Code, § 1317 for a hospital rescue team because there were no facts showing bad faith or gross negligence for deviating from American Heart Association guidelines].)

Decker’s argument would find gross negligence because the rescue personnel elected to try two methods to rescue Gary but failed to try a third method, i.e., [***23] contacting off-duty lifeguards. This failure to pursue this alternative, which may or may not have succeeded in saving Gary’s life, does not constitute gross negligence. (12) [HN8] To avoid a finding of gross negligence, it is not required that a public entity must pursue all possible options. It is required only that they exercise some care, that they pursue a course of conduct which is not “‘an extreme departure from the ordinary standard of conduct.'” ( Franz v. Board of Medical Quality Assurance, supra, 31 Cal.3d 124, 138.)

(8d) The essence of Decker’s complaint is not that the Imperial Beach rescue personnel were grossly negligent in failing to try to rescue Gary, but that they were not timely in their rescue of Gary. To the extent Decker’s claim is essentially that Imperial Beach was not timely in providing lifeguard services, his case is similar to County of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d 999 [244 Cal.Rptr. 105]. In the Santa Cruz case, the court found summary judgment was properly granted on a claim for gross negligence for injuries due to diving into shallow water. The court explained: “The only basis for liability that Magana alleged against City . . . [***24] was that City lifeguards failed to provide adequate and safe extrication and first aid to him promptly after he was injured. . . . The allegation here is that the lifeguard assigned to the area where the injury occurred did not respond and offer aid for 20 minutes. This is insufficient to raise a triable issue of gross negligence or bad faith.” ( Id. at p. 1007.)

Here the facts supporting gross negligence are even weaker. In contrast to the Santa Cruz case where no rescue efforts were made for 20 minutes, here [*362] the rescue personnel arrived promptly and they diligently and continuously tried to rescue Gary. The facts in this case do not warrant a finding of gross negligence. Summary judgment was properly granted on Decker’s cause of action for gross negligence.

IV

Special Relationship

Imperial Beach also argues it had no liability for Gary’s death because no special [**364] relationship existed between Imperial Beach and Gary. We need not resolve this issue since we have held Imperial Beach has immunity under section 831.7.

The judgment is affirmed.

CONCUR BY: WIENER (In Part)

DISSENT BY: WIENER (In Part)

DISSENT

WIENER, J., Concurring and Dissenting. I agree that absent gross negligence, Government Code section 831.7 [***25] immunizes the City of Imperial Beach (City) from emergency rescue service. I disagree, however, that there are no triable factual issues as to the City’s gross negligence.

In the interest of brevity I will not belabor what I believe is the misapplication of the standards governing summary judgment to the facts here. (See maj. opn., ante, pp. 353-354.) I prefer to focus on the human aspects of this case.

Understanding the meaning of gross negligence in the context of this case does not require scholarly insight into an arcane legal subject. The simple question before us is whether there are triable factual issues relating to the City’s gross negligence. Significantly we are not asked to decide, as the majority would have us believe, whether Decker successfully established gross negligence. That determination is not required in a summary judgment proceeding. “[The] trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” ( Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].)

Here without sufficient factual support the majority say as a [***26] matter of law that the action taken by the fire chief to prevent any rescue effort was perfectly proper. Perhaps they are correct. It may well be that the chief made a prudent judgment call or at worse acted only negligently. But from [*363] the information in the record before us I cannot say that this conduct did not represent a substantial departure from ordinary care. I do not know what objective criteria, if any, the fire chief used to formulate his decision barring everyone on the beach from trying to save Gary. What investigation did the fire chief take before issuing his blanket directive preventing anyone from attempting to rescue this drowning young man? What authority did he have to effectively intimidate those who were willing to be Good Samaritans from acting as such when there is nothing in this record to support a finding that their efforts would not have been successful? I would hate to think that bureaucratic considerations dominated the chief’s decision. We may never know. The summary judgment remedy, characterized as a drastic remedy to be used with caution, has replaced a trial on the merits.

Although the appellate record is purportedly cold I cannot leave this [***27] case without admitting that I will remain haunted by the specter of this young man’s lengthy, unsuccessful struggle against the power of the sea, fighting to stay afloat, emotionally assisted by what can only be described as a callous call from the beach that “help was on the way.” In no way can this case be compared to the drowning described in City of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d 999 [244 Cal.Rptr. 105] where lifeguards came to assist the victim as soon as they were able to do so, about 20 minutes after the accident occurred. All those participating in the rescue efforts were certified emergency technicians. It was also undisputed that the lifeguard assigned to the area was elsewhere properly attending to another problem when the accident happened. (At p. 1002.) I agree the facts in City of Santa Cruz do not present triable factual issues on the question of the City’s gross negligence. I cannot agree here. This case should be decided on the evidence presented in a trial and not on the documents before us.


This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).

A negligence per se claim can be stopped if the plaintiff assumed the risk under California law. This is probably a rare look at negligence per se in the fifty states.

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

State: California, Court of Appeal of California, Second Appellate District, Division Five

Plaintiff: Christian Moser

Defendant: Joanne Ratinoff

Plaintiff Claims: negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with the defendant.

Defendant Defenses: Primary Assumption of the Risk and Secondary Assumption of the Risk

Holding: for the defendant

Year: 2003

The plaintiff and the defendant participated in an “organized long-distance bicycle ride on public highways involving hundreds of participants.” The ride, the Death Valley Double Century was a 200-mile ride (double century). During the ride, the defendant swerved from the right side along the curb to the left into the plaintiff causing a collision. The plaintiff suffered injuries.

Prior to the ride, both participants signed releases. The releases explained several of the risks of the activity, but did not protect participants from claims of other participants. “The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

The case was dismissed at the trial court level because collisions are an inherent risk of cycling. The plaintiff appealed.

Analysis: making sense of the law based on these facts.

The court first looked at the requirements for the defendant to prove assumption of the risk by motion.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Under California law, a participant is generally responsible for their own injuries caused by the ordinary care or skill of another.

The court then looked at whether the plaintiff expressly assumed the risk of his injuries.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Express assumption of the risk is usually considered a written assumption of the risk. The court set out the definitions that must be met to prove express assumption of the risk in California.

The doctrine of express assumption of the risk is founded on express agreement. ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement. . . .’ That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world.

The court found that express assumption of the risk could not be applied to this case, as the defendants failed to prove that she was entitled to use the release signed by both parties before entering the race. However, the court found there could still be some value to the defendant from the release. “A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk.”

The court then looked at implied assumption of the risk, also known as secondary assumption of the risk, and whether it could be proved in this case. Under California law, implied assumption of the risk “embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”

Implied assumption of the risk was defined by the California Supreme Court as:

…a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.”

The reasoning for this is to impose a duty would place a chill on most sporting activities so that participants would not vigorously compete.

The test for implied assumption of the risk is not whether the defendant must protect the plaintiff from a known risk, but the nature of the activity.

The court then looked to determine if prior decisions had applied the defense of implied assumption of the risk to “organized non-competitive recreational bicycle riding.” However, the court did find that the risks and other factors made this type of cycling the same as other sports that implied assumption of the risk had been applied too by other California courts.

Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court said upon “[c]ompiling all of the distinguishing factors” from the cases,  an activity is a “sport” to which the primary assumption of risk doctrine applies if that activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

The court also found that although bicycles are vehicles under California law, this type of activity was not the same as driving a car. This was done for enjoyment and physical activity.

However, the assumption of risk is not a blanket defense to all claims.

The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’

Defendants have no legal duty to eliminate the risk or protect a plaintiff to the risks inherent in a sport. The next issue becomes what then are the inherent risks of a sport.

Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence.

The court then gave examples of non-inherent risks and inherent risks in sports as determined by other California courts.

Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

The court then found that two riders riding side by side, a collision between the two, or one rider riding into the other was an inherent risk of cycling.

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity.

The defendant in this case the court determined was negligent, but was not wanton or reckless or conduct so totally outside of the range of ordinary activity involved in cycling.

The final issue the court looked at is whether the claim of negligence per se is barred by express or implied assumption of the risk. Court looked at precedent, prior case law, to determine the issue and found none. There were several California Supreme Court decisions that looked at the issue but did not rule on it. On the court today, this court determined from those prior decisions that a majority, four, of the justices on the court would argue that a negligence per se claim is blocked by express assumption of the risk. “Nevertheless, a majority of the present California Supreme courts have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.”

The court upheld the ruling of the trial court, and the case was dismissed.

So Now What?

First do not assume that assumption of the risk, in any form can bar a negligence per se claim. There are several states were this would not be true.

Second, the court’s analysis of the facts and the law are easily understood and supported by the case law quoted. This is a great case to understand the two types of assumption of the risk allowed in California.

Finally, in California of two or more people riding together is that one of those people assumes the inherent risk of colliding with the other.

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Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Christian Moser, Plaintiff and Appellant, v. Joanne Ratinoff, Defendant and Respondent.

No. B153258.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE

January 31, 2003, Decided

January 31, 2003, Filed

CALIFORNIA OFFICIAL REPORTS SUMMARY A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

The Court of Appeal affirmed. It held that a waiver, signed by plaintiff prior to participating in the ride, that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants, did not inure to the benefit of defendant. However, the court held, the primary assumption of the risk doctrine was applicable. Organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. The court also held that the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the doctrine. (Opinion by Mosk, J., with Turner, P.J., and Grignon, J., concurring.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1) Summary Judgment § 26–Appellate Review–Scope of Review. — –A grant of summary judgment is reviewed de novo. The appellate court makes an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. Under Code Civ. Proc., § 437c, subd. (p)(2), a defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action.

(2) Negligence § 98–Actions–Trial and Judgment–Questions of Law and Fact–Assumption of Risk–Summary Judgment. — –When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains. Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.

(3) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk. — –A defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk.

(4) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect of Express Waiver. — –A participant in an organized, long-distance bicycle ride on public highways did not assume the risk of negligence by a coparticipant in the ride by signing, prior to taking part in the ride, a waiver that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants. An express assumption of risk agreement does not inure to the benefit of those not parties to that agreement.

(5) Negligence § 37–Exercise of Care by Particular persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect. — –The doctrine of primary assumption of the risk embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. Where the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.

(6) Negligence § 37–Exercise of Care by Particular Persons-Exercise of Care by Plaintiff–Assumption of Risk–Competitive Sports. — –Under the doctrine of primary assumption of risk, a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. Whether the doctrine applies depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of the doctrine is to avoid imposing a duty that might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.

(7) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Analytical Frameword. — –In assumption of the risk analysis, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.

(8a) (8b) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Orgainzed Bicycle Ride. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the trial court properly granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. Such organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. Defendant’s movements may have been negligent, but they were not intentional, wanton, or reckless, nor were they totally outside the range of ordinary activity involved in the sport. Thus, the accident was within the risks assumed by plaintiff and defendant when they chose to participate.

[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090C.]

(9) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Risks Not Assumed. — –Even if an activity is one to which the primary assumption of the risk doctrine applies, there are certain risks that are deemed not assumed and certain injury-causing actions that are not considered assumed risks of the activity. An activity that is not inherent in the sport is not subject to the doctrine. Drinking alcoholic beverages, for example, is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, and proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

(10) Negligence § 40–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Violation of Safety Law–Vehicle Code Provisions Applicable to Bicycle Riding. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the primary assumption of the risk doctrine. The doctrine is not displaced by a violation of a statute that does not evince legislative intent to eliminate the assumption of the risk defense.

COUNSEL: Law Offices of Michael L. Oran, Michael L. Oran, Kathy B. Seuthe; Law Offices of Garry S. Malin and Garry S. Malin for Plaintiff and Appellant.

Barry Bartholomew & Associates, Michael A. Nork and Kathryn Albarian for Defendant and Respondent.

JUDGES: (Opinion by Mosk, J., with Turner, P. J., and Grignon, J., concurring.)

OPINION BY: MOSK

OPINION

[*1214] [**200] MOSK, J.

Plaintiff and appellant Christian Moser (Moser) and defendant and respondent Joanne Ratinoff (Ratinoff) participated in an organized, long-distance bicycle ride on public highways involving hundreds of participants. Moser signed an “Accident Waiver and Release of Liability” form for the benefit of the event holders, sponsors and organizers in which Moser expressly assumed the risk of various injuries, including those caused by other participants. During the ride, Ratinoff swerved into Moser, causing him to crash and sustain injuries. Moser sued Ratinoff for general negligence. Ratinoff filed a motion for summary judgment on the ground that a collision between bicycle riders was an inherent risk in the ride, and [*1215] therefore the action was barred by [***2] the primary assumption of risk doctrine enunciated in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight). Moser opposed the motion on the grounds that the primary assumption of risk doctrine did not apply because the collision was not an inherent risk of the activity and because Ratinoff’s violation of provisions of the California Vehicle Code precluded application of the doctrine. The trial court granted summary judgment in Ratinoff’s favor. We hold that the primary assumption of risk doctrine applies to the organized bicycle ride, and that a violation of a statute does not displace that doctrine. Accordingly, we affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND 1

1 We state the facts in accordance with the standard of review stated post.

Moser and Ratinoff collide during a bicycle ride

In February 1999, Moser registered to participate in the Death Valley Double Century bicycle ride, a 200-mile, noncompetitive bicycle ride on public [***3] highways. Hugh Murphy Productions organized the ride in which approximately 600 bicycle riders participated. 2 Before participating in the ride, Moser signed a document provided by the organizers entitled “Accident Waiver and Release of Liability” (the release), releasing the organizers and stating, “I acknowledge that this athletic event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to those caused by . . . actions of other people including but not limited to participants. . . . I hereby assume all of the risks of participating &/or volunteering in this event.” The organizer required riders to wear helmets and to have bicycle lights.

2 One of the forms refers to the promoter as “Badwater Adventure Sports.”

The ride had no designated start time. On the day of the accident, Moser and his friend, David Warshawsky (Warshawsky), began the ride at 4:00 a.m. At a rest stop, [***4] Moser and Warshawsky encountered Ratinoff, another participant in the ride. The three cyclists left the rest stop together, with Warshawsky and Ratinoff riding side-by-side and Moser riding behind them. At some point, they began riding single file.

Moser was cycling close to the right-hand side of the road. Ratinoff said that she came from behind Moser’s left side and passed him or rode at his left side. Moser said Ratinoff came up from behind him and rode next to him on his left side. While she was riding on Moser’s left side, an Inyo County Sheriff’s Deputy pulled his car approximately four or five car lengths behind [*1216] them and stayed there for several minutes. Ratinoff turned to look at the [**201] police car, and she then told Moser, “I have to come over.” According to Ratinoff, a “split second” later, she moved to her right toward Moser.

As Ratinoff moved to her right, she made contact with Moser, who nevertheless was able to retain control of his bicycle. Within seconds, Ratinoff again collided with Moser, causing him to fall off his bike and to sustain injuries. At the time of the collision, Ratinoff and Moser were riding at an approximate speed of 15 to 20 miles per hour.

Moser [***5] sues Ratinoff, and Ratinoff files a motion for summary judgment

Moser commenced an action against Ratinoff and in his complaint alleged that Ratinoff “negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with” Moser’s bicycle. Ratinoff alleged assumption of risk as an affirmative defense.

Ratinoff filed a motion for summary judgment in which she contended that she was not liable to Moser because under the primary assumption of risk doctrine she did not breach a duty of care owed to him. Moser, in opposition to the motion, argued that the primary assumption of risk doctrine does not apply to noncompetitive bicycle riding and that Ratinoff violated Vehicle Code sections 21202, subdivision (a) (operating a bicycle as close “as practicable to the right-hand curb or edge of the roadway”), and 22107 (moving a vehicle to the left or right “with reasonable safety”), thereby giving rise to a presumption of negligence and rendering the primary assumption of risk doctrine inapplicable.

The trial court granted the summary judgment motion and entered judgment against Moser. The trial court denied Moser’s motion [***6] for new trial. Moser does not raise the denial of his new trial motion as a basis for his appeal.

STANDARD OF REVIEW

(1) [HN1] We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal. Rptr. 2d 356].) We make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal. Rptr. 2d 35].) A defendant moving for summary judgment meets its burden of showing that [*1217] there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal. Rptr. 2d 841, 24 P.3d 493].) [***7] (2))

[HN2] “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395 [36 Cal. Rptr. 2d 418].) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight, supra, 3 Cal.4th at p. 313; Record v. Reason (1999) 73 Cal.App.4th 472, 479 [86 Cal. Rptr. 2d 547].) [**202]

DISCUSSION

[HN3] A person is generally responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Civ. Code, § 1714.(3)) But a defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk. (Knight, supra, 3 Cal.4th at pp. 308, fn. 4, 309-321.)

I. Express assumption of risk

Before reaching the issue of implied assumption of risk, we must determine if Moser expressly assumed the risk of a collision based [***8] on the release he signed. [HN4] An express assumption of risk is a complete defense to a negligence claim. (Knight, supra, 3 Cal.4th at p. 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 [59 Cal. Rptr. 2d 813]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012 [54 Cal. Rptr. 2d 330].) Moser released the “event holders, sponsors and organizers,” and also acknowledged the risks of the ride, including those caused by other participants. The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal. Rptr. 2d 781] (Westlye), the plaintiff, who was injured skiing, filed an action against the ski shop from which he rented allegedly defective ski [*1218] equipment and the distributors of the equipment. He had signed a written agreement with the ski shop in which he accepted the equipment for use “as is”; agreed that he understood that there ” ‘are no guarantee[s] for the user’s safety’ “; acknowledged that there is ” ‘an inherent risk of injury in the sport of skiing, and the use of any ski equipment, and expressly assume[d] the risks for any [***9] damages to any persons or property resulting from the use of this equipment’ “; and released the ski shop from any liability. (Id. at p. 1725.)

The distributors of the equipment contended that “as a matter of law an express assumption of risk is good as against the whole world” and therefore precluded any liability against the distributors. (Westlye, supra, 17 Cal.App.4th at p. 1729.) In holding that the plaintiff had not released the distributors of the equipment, the court said, “defendants fail to submit, and we have not discovered, any authority for [the distributors’] proposition. The doctrine of express assumption of the risk is founded on express agreement. [Citations.] ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ [Citations.] Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect [***10] to the risks encompassed by the agreement. . . .’ [Citation.] That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world. [P] . . . [P] We conclude the distributor defendants have failed to establish that they are entitled to the benefit of the written agreement between plaintiff and [the ski shop].” (Id. at pp. 1729-1730.)(4))

Westlye, supra, 17 Cal.App.4th 1715, states the existing law that [HN5] an express assumption of risk agreement does not inure to the benefit of those not parties to that agreement. Accordingly, [**203] Moser did not expressly assume the risk of negligence by a coparticipant in the ride. A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk. (See discussion post.)

II. Implied assumption of risk

The subject of implied assumption of risk has generated much judicial attention. Its modern history began when California eliminated contributory negligence and adopted a comparative negligence system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226].. [***11] [*1219] Thereafter, the California Supreme Court–in two companion cases, Knight, supra, 3 Cal.4th 296, and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724] (Ford)–considered the “proper application of the ‘assumption of risk’ doctrine in light of [the] court’s adoption of comparative fault principles.” (Knight, supra, 3 Cal.4th at p. 300.) (5))

In Knight, supra, 3 Cal.4th 296, the Supreme Court, in a plurality opinion, set forth the doctrine of primary assumption of the risk. That doctrine, which is now established as “the controlling law” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 [68 Cal. Rptr. 2d 859, 946 P.2d 817] (Cheong)), “embodies a legal conclusion that [HN6] there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk. . . .” (Knight, supra, 3 Cal.4th at p. 308.) When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability. (Ibid.) 3

3 But see the Restatement Third of Torts, section 2 and comment i, pages 19, 25 (“Most courts have abandoned implied assumptions of risk as an absolute bar to a plaintiff’s recovery”).

[***12] (6) In Knight, supra, 3 Cal.4th 296, the court concluded that a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” (Id. at p. 316.) In Ford, the court applied the rule to noncompetitive, non-team-sporting activities–in that case waterskiing. (Ford, supra, 3 Cal.4th 339.)

[HN7] Whether the primary assumption of risk doctrine applies–which issue is, as noted above, a question of law–“depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.” (Knight, supra, 3 Cal.4th at p. 313.) “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated [***13] activity and thereby alter its fundamental nature.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253 [38 Cal. Rptr. 2d 65].)

III. Activity subject to primary assumption of risk

(7) In Knight, supra, 3 Cal.4th at page 309, the court said that “whether the defendant owed a legal duty to protect the plaintiff from a [**204] particular risk [*1220] of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” The court suggested that generally, the primary assumption of risk doctrine applies in a “sports setting.” (Id. at pp. 309-310, fn. 5.) (8a)) Thus, the issue in the instant case is whether an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies.

The court in Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635 [53 Cal. Rptr. 2d 657], stated, “Knight may require a court to determine a question of duty in sports settings while factually uninformed of how the sport is [***14] played and the precise nature of its inherent risks.” To make a decision concerning duty we must know the nature of a particular sport, and even if we do have such knowledge, we still may have no idea how imposing liability will affect or “chill” the sport–which is a major factor in making a determination of duty. (See American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [93 Cal. Rptr. 2d 683] [court said “expert opinion may inform the court on these questions”].) Nevertheless, under the current state of the law established by Knight, we must somehow make such a determination.

As guidance, there are cases in which courts have determined whether or not the primary assumption of risk applies to a particular activity. There are a number of cases involving sports activities in which the court found a primary assumption of risk. (Cheong, supra, 16 Cal.4th 1063 [snow skiing]; Ford, supra, 3 Cal.4th 339 [waterskiing]; Knight, supra, 3 Cal.4th 296 [touch football]; Sanchez v. Hillerich & Bradsby (2002) 104 Cal.App.4th 703 [128 Cal. Rptr. 2d 529] [collegiate baseball]; Distefano v. Forester (2001) 85 Cal.App.4th 1249 [102 Cal. Rptr. 2d 813] [***15] (Distefano) [off-roading]; Calhoon v. Lewis (2000) 81 Cal.App.4th 108 [96 Cal. Rptr. 2d 394] [skateboarding]; American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th 30 [golf]; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428 [89 Cal. Rptr. 2d 920] [lifeguard training]; Record v. Reason, supra, 73 Cal.App.4th 472 [tubing behind a motorboat]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939 [80 Cal. Rptr. 2d 638] [wrestling]; Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal. Rptr. 2d 801] [gymnastics stunt during cheerleading]; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47 [72 Cal. Rptr. 2d 337] [little league baseball]; Domenghini v. Evans (1998) 61 Cal.App.4th 118 [70 Cal. Rptr. 2d 917] [cattle roundup]; Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551 [68 Cal. Rptr. 2d 58] [sport fishing]; Staten v. Superior Court, supra, 45 Cal.App.4th 1628 [ice skating]; [*1221] Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430 [52 Cal. Rptr. 2d 812] [football practice drill]; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525 [50 Cal. Rptr. 2d 671] [***16] [judo]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040 [48 Cal. Rptr. 2d 922] [rock climbing]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th 248 [river rafting]; O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 [35 Cal. Rptr. 2d 467] [snow skiing]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670] [sailing].) In some other recreational activities, [**205] courts have held that there was no primary assumption of risk. (Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217] [boating passenger]; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 [21 Cal. Rptr. 2d 178] [recreational dancing].)

We have found no case that considers primary assumption of risk in connection with organized, noncompetitive, recreational bicycle riding. Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court in Record v. Reason, supra, 73 Cal.App.4th at page 482, said upon “[c]ompiling all of the distinguishing factors” from the cases, [HN8] an activity is a “sport” to which the primary assumption of risk doctrine applies if that [***17] activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

It is true that bicycle riding is a means of transportation–as is automobile driving. Normal automobile driving, which obviously is not an activity covered by the assumption of risk doctrine, requires skill, can be done for enjoyment, and entails risks of injury. But [HN9] organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. 4 Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge. Moser acknowledged in the release he signed that the activity is “an athletic event that is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss.” In view of these considerations, the organized, long-distance, group bicycle ride qualifies [***18] as a “sport” for purposes of the application of the primary assumption of risk doctrine.

4 We express no opinion as to such other forms of recreational bicycle riding.

IV. Inherent risk

(9) [HN10] Even if the activity is one to which the primary assumption of risk applies, there are certain risks that are deemed not assumed, and certain [*1222] injury-causing actions that are not considered assumed risks of the activity. The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood [***19] of injury above that which is inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827 [89 Cal. Rptr. 2d 519].) Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1394.) A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so [**206] reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence. (Knight, supra, 3 Cal.4th at pp. 320-321.)

[HN11] Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1388.) On the other hand, in various sports, going too fast, [***20] making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. (See Cheong, supra, 16 Cal.4th 1063; Distefano, supra, 85 Cal. App. 4th 1249; Record v. Reason, supra, 73 Cal.App.4th 472.)(8b))

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. 5 The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity. If liability attached to entanglements and collisions among 600 bicycle riders, the recreational sport of an organized bicycle ride likely would be adversely affected.

5 Compare Mark v. Moser (Ind. Ct.App. 2001) 746 N.E.2d 410 (inherent risk in a competitive cycling race is that a competitor may attempt to cut in front of a coparticipant to advance position).

[***21] Ratinoff’s movements toward the right side of the road that caused her to collide with Moser may have been negligent, but they were not intentional, [*1223] wanton or reckless or conduct “totally outside the range of ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at pp. 320-321.) Therefore, the accident at issue in this case is within the assumed risks of the organized bicycle ride in which Moser and Ratinoff were engaged. 6

6 There are traffic-related risks that might not be considered inherent in the activity involved here, such as those involving automobile negligence. (See Story v. Howes (N.Y. App. Div. 1973) 41 A.D.2d 925 [344 N.Y.S.2d 10] [“mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car”]; Bell v. Chawkins (Tenn. Ct.App. 1970) 62 Tenn. App. 213 [460 S.W.2d 850] [bicyclist did not assume risk dog would bite her].)

V. Effect of statute

Moser asserts that the primary [***22] assumption of risk doctrine does not bar a claim when, as here, Ratinoff has violated statutes.

A. Pleading requirement

Moser’s failure to allege in his complaint that defendant’s conduct violated any statutory duties owed to plaintiff would, under Distefano, supra, 85 Cal. App. 4th at page 1266, procedurally bar plaintiff from raising the effect of a statutory violation in opposing a motion for summary judgment. Although this holding in Distefano appears inconsistent with long-standing authority that a plaintiff’s allegations of negligence include statutory violations that constitute negligence per se (Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 680 [255 P.2d 802]; Karl v. C. A. Reed Lumber Co. (1969) 275 Cal. App. 2d 358, 361-362 [79 Cal. Rptr. 852]), we need not determine this procedural issue because of our conclusion that the statutory violations do not, under present [**207] law, preclude the assumption of risk doctrine.

B. Statutory violations do not displace the Knight rule

(10) Moser contends that defendant’s violations of various Vehicle Code sections constitute negligence per se, and thus preclude the application [***23] of the primary assumption of risk doctrine. The California Supreme Court has addressed this issue in two cases–Ford, supra, 3 Cal.4th 339, and Cheong, supra, 16 Cal.4th 1063–and has produced a number of opinions, leading one court to say “there appears to be no clear consensus on the high court about this issue.” (Campbell v. Derylo, supra, 75 Cal.App.4th at p. 829, fn. 3.) Nevertheless, a majority of the present California Supreme Court have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.

[*1224] The lead opinion in Ford, supra, 3 Cal. 4th 339, which case involved a waterskiing accident, dealt with whether Harbors and Navigation Code section 658, subdivision (d), 7 coupled with the negligence per se doctrine (as codified in Evid. Code, § 669), 8 established a rebuttable presumption that the defendant breached his duty of care to the plaintiff. That opinion concluded that the violation of Harbors and Navigation Code section 658 was inapplicable because the plaintiff [***24] did not fall within the statute’s protected class. (Id. 3 Cal.4th at p. 350.) Three of the justices found that the plaintiff was within the class of persons Harbors and Navigation Code section 658 was intended to protect, and therefore, under Evidence Code section 669, the defendant violated a legal duty of care to the plaintiff. (Id. at pp. 364-369 (conc. & dis. opn. of George, J.); id. at p. 369 (dis. opn. of Mosk, J.).) 9 Three other justices who had disagreed with the Knight plurality opinion and would have “adhere[d] to the traditional consent approach” to assumption of risk (id. at p. 351, fn. 1 (conc. opn. of Kennard, J.)), stated that the statute is not “the type of safety enactment that would preclude defendant . . . from asserting assumption of risk as a defense barring plaintiff . . . from recovering damages in his negligence action.” (Id. at p. 363 (conc. opn. of Kennard, J.).)

7 Harbors and Navigation Code section 658 provides that no person shall operate a vessel so as to cause, among other things, water skis to collide with any object or person.

[***25]

8 Evidence Code section 669, subdivision (a), provides: “The failure of a person to exercise due care is presumed if: [P] (1) He violated a statute, ordinance, or regulation of a public entity; [P] (2) The violation proximately caused death or injury to person or property; [P] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [P] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (See also Vesely v. Sager (1971) 5 Cal.3d 153, 164-165 [95 Cal. Rptr. 623, 486 P.2d 151].)

9 “Justice Arabian’s [lead] opinion in Ford implicitly assumed, and the opinions of Justice George, joined by Chief Justice Lucas, and Justice Mosk expressly concluded, that if the four elements of section 669(a) were satisfied, that statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Cheong, supra, 16 Cal.4th at p. 1071.)

[***26] In Cheong, supra, 16 Cal.4th 1063, two friends were skiing together and collided, resulting [**208] in litigation. The trial court granted summary judgment in the defendant’s favor on the ground that a collision is an inherent risk of downhill skiing. On appeal, the plaintiff argued that the defendant’s violation of a county ordinance delineating the duties of skiers resulted in liability under Evidence Code section 669 and foreclosed the application of the primary assumption of risk doctrine. The ordinance expressly provided that a skier assumes the “inherent risks” of skiing, including the risk of collision with other skiers. (Id. at pp. 1069-1070.) The majority held that the ordinance did not create any duty other than that available under common law. The court said that “a number of the justices who have signed this [*1225] majority opinion” in Cheong questioned the conclusion of four justices in Ford that if the elements of Evidence Code section 669 were satisfied, a “statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Id. at p. 1071.) [***27] The court added that the point need not be resolved because the elements of Evidence Code section 669 had not been met–the plaintiff had “not demonstrated that he is one of the class of persons the ordinance was intended to protect.” (Ibid.) The court therefore affirmed the grant of summary judgment.

A concurring opinion, joined by two justices, expressed the view that “[t]he Knight standard of primary assumption of risk still applies even if the violation of an ordinance or statute, combined with Evidence Code section 669, creates a presumption of negligence.” (Cheong, supra, 16 Cal.4th at p. 1079 (conc. opn. of Chin, J., 10 joined by Baxter, J. and Brown, J.).) A fourth justice stated that statutory obligation along with Evidence Code section 669 did not impose a duty of care when Knight eliminated a sports participant’s duty of care. (Id. at p. 1074 (conc. opn. of Kennard, J.).) Three justices took a contrary view, with one stating that the violation of a statute displaces the “no-duty rule of Knight” (id. at p. 1073 & fn. 1 (conc. opn. of [***28] Mosk, J.)) and the others stating that Evidence Code section 669 “may transform an appropriate statute into a legal duty of due care upon the defendant.” (Id. at p. 1077 (conc. opn. of Werdegar, J., joined by George, C. J.).)

10 Justice Chin also authored the majority opinion.

The Supreme Court has not conclusively determined whether or not a violation of law can displace the primary assumption of risk doctrine. Nevertheless, four justices presently sitting on the California Supreme Court 11 –a majority–expressed the view that Evidence Code section 669 does not itself override Knight, but rather that one must ascertain whether the violated statute was intended to do so. Only two justices now on the court 12 have concluded that the violation of a safety statute or ordinance designed to protect persons in the position of a plaintiff precludes the application of the implied assumption of risk doctrine.

11 Justices Baxter, Kennard, Chin and Brown.

[***29]

12 Chief Justice George and Justice Werdegar.

The appellate court in Distefano, supra, 85 Cal.App.4th 1249, addressed this question. In that case, two men, one on a motorcycle and another in a dune buggy, were “off-roading.” After [**209] coming up opposite sides of a blind hill, they collided. Plaintiff contended that the Knight rule did not bar his action because defendant owed him statutory duties under Vehicle Code sections 38305 (proscribing driving off-road vehicles at an unreasonable or [*1226] imprudent speed) and 38316 (proscribing driving off-road vehicles with a willful and wanton disregard for the safety of other persons or property). (Id at p. 1265.)

Although the court held that a claim based on a violation of a statute was barred for procedural reasons, the court proceeded to address the merits of the contention that the Vehicle Code, along with Evidence Code section 669, imposed a tort duty that rendered the primary assumption of risk doctrine unavailable. (Distefano, supra, 85 Cal.App.4th at pp. 1266-1267.) [***30] The court stated that Vehicle Code sections 38305 and 38316, which provisions were enacted before the Supreme Court’s decision in Knight, did not evince any legislative intent to supersede or modify an assumption of risk doctrine later declared by Knight. (Distefano, at p. 1273.) The court therefore concluded that the statutory provisions “do not abrogate the Knight primary assumption of the risk doctrine, and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight.” (Id. at p. 1274.)

Because a majority of the current Supreme Court justices have expressed the view that [HN12] a violation of a statute that indicates no legislative intent to eliminate the assumption of risk defense does not displace the primary assumption of risk doctrine, and because there are no cases inconsistent with that view, we adopt the Distefano court’s conclusion. (Distefano, supra, 85 Cal.App.4th 1249.) Although the facts show that Ratinoff violated provisions of the Vehicle Code designed to protect persons using public roads, based on our conclusion [***31] as to the present state of the law, such violations do not nullify Moser’s assumption of the risk.

CONCLUSION

Under the present state of the law, as applied here, the result is reasonable. By knowingly participating in a sporting event in which what occurred is an evident risk, Moser is not entitled to a recovery from Ratinoff.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

Turner, P. J., and Grignon, J., concurred.

Appellant’s petition for review by the Supreme Court was denied April 23, 2003.


Allegations of fraud inducing a non-English speaking client to sign a release are enough to void the release in California.

Second issue, intentionally increasing the risk to the plaintiff after the release has been signed is also enough to void a release.

Jimenez et al., v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546; 188 Cal. Rptr. 3d 228; 2015 Cal. App. LEXIS 494

State: California

Plaintiff: Etelvina Jimenez et al.

Defendant: 24 Hour Fitness USA, Inc.

Plaintiff Claims: 1) the liability release is not enforceable against plaintiffs’ claim of gross negligence; (2) the release was obtained by fraud and misrepresentation; and (3) the release only encompasses reasonably foreseeable risks and Etelvina’s injury was not reasonably foreseeable at the time she signed the release.

Defendant Defenses: Release

Holding: for the plaintiff

Year: 2015

This is a fitness center case that has two very important issues in the appellate court decision. The first is proof of a product liability claim against the defendant fitness facility for failing to follow the manufacturer’s recommendations. The second is the release may be void because the plaintiff did not read or understand English, and she was fraudulent induced to sign the release.

The plaintiff went to the defendant fitness facility to join. At the time, she did not read or speak English. The plaintiff was directed to the membership manager. During their interaction, he used gestures and pointed to the monthly price on a computer monitor.

On the day she joined, she was directed to the membership manager, Justin Wilbourn. She was then required to sign a membership agreement. However, Etelvina could not read or speak English, and Wilbourn did not speak Spanish. Wilbourn knew Etelvina did not read or speak English. Nevertheless, he did not call a Spanish-speaking employee to help him translate. Instead, he pointed to his computer screen to a figure, $24.99, indicating the membership fee, and made pumping motions with his arms like he were exercising. Etelvina understood the numbers, which are identical in Spanish, and she understood Wilbourn’s physical gestures to mean that if she paid that amount, she could use the facility. She could not read anything else. Wilbourn then pointed to the lines in the agreement for Etelvina to sign.

The plaintiff signed the release and had been a member for two years when the incident occurred.

The plaintiff was injured when she fell off a treadmill. She does not remember the incident. Expert witnesses for the plaintiff established she fell and suffered a head injury when she struck an exposed steel foot of a leg exercise machine. The exposed foot was 3’ 10” behind the treadmill she was on. The owner’s manual of the treadmill and an expert witness hired by the plaintiff stated the safety area behind the treadmill should be 6’ x 3’.

However, the treadmill manufacturer’s owner’s manual instructed in a section titled “Treadmill Safety Features”: “[I]t is important to keep the area around the treadmill open and free from encumbrances such as other equipment. The minimum space requirement needed for user safety and proper maintenance is three feet wide by six feet deep … directly behind the running belt.” The manufacturer’s assembly guide for the treadmill also says to provide a minimum six-foot clearance behind the treadmill for “user safety” and maintenance.

The defendant filed a motion for summary judgment, which was granted and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The court first laid out when a motion for summary judgment should be granted by the trial court. The party filling the motion must argue there are not factual issues, only legal issues and the law is on the side of the party filing. The responding party then to stop the granting of the motion must argue there are factual issues still at issue. When looking at the motions any decision that must be decided must be done so in favor of the party opposing the motion.

A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” “[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact fact, that he is entitled to judgment as a matter of law.” If a defendant shows that one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action, the burden shifts to the plaintiff to show that a triable issue exists as to one or more material facts. If the trial court finds that no triable issue of fact exists, it then has the duty to determine the issue of law.

The court then looked at the definition of ordinary negligence and gross negligence under California law.

“‘Ordinary negligence’–an unintentional tort–consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.’Gross negligence’ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.’

The court then examined the arguments concerning the product liability claims. The defendant argued that there was no industry standard of care for a safety zone around the treadmill. However, the court did not buy the argument because the manufacturer’s manual described a safety zone that should be observed.

24 Hour contends that there was no industry standard regarding a treadmill safety zone. They offer no cases or examples of any industry standard that violates a manufacturer’s safety directions. Indeed, it could be reasonably inferred that it is unlikely an industry would develop a standard that violates the express safety directions of the manufacturer.

The plaintiff’s pointed to three different requirements for a safety zone. The manufacturer’s owner’s manual, the manufacturer’s assembly instructions and the testimony of an expert witness of the plaintiff.

(1) the treadmill manufacturer’s owner’s manual instructed in its “Treadmill Safety Features” section that “[t]he minimum space requirement needed for user safety and proper maintenance is three feet wide by six feet deep”; (2) the manufacturer’s assembly guide for the treadmill also instructs that the treadmill requires a minimum six-foot-deep clearance behind it “for user safety and proper maintenance” (italics added); and (3) plaintiffs’ expert, Waldon, declared that “[f]or the safety of the users and in order to minimize injury, it is important that a safety zone behind the treadmill be kept clear of other machines and obstacles so that users falling off or pushed off the rear of the treadmill do not strike such objects,” and he opined that 24 Hour’s act of placing other exercise equipment inside the safety zone “greatly increased the risk of injury to [Etelvina].”

The evidence presented by the plaintiff the court found could be viewed as an industry standard.

In our view, based on the evidence plaintiffs presented, a jury could reasonably find that (1) it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills, based on the owner’s manual, assembly guide, and Waldon’s declaration as an expert; (2) 24 Hour did not provide this minimum six-foot safety zone, as declared by Neuman; and (3) the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of conduct, as implied in Waldon’s declaration.

Later in reinforcing its statement the court found the only reason to place so many pieces of equipment so close together would be to make more money. “It can be inferred that 24 Hour did so for the purpose of placing more machines into its facility to accommodate more members to make more money.”

The next issue was the issue that the release was obtained by fraud and misrepresentation.

Plaintiffs contend that there are triable issues of fact as to whether 24 Hour obtained Etelvina’s sig-nature on the liability release through fraud and misrepresentation, which would invalidate the release as to all of plaintiffs’ theories of recovery.

The court looked at what a release is and when it can be voided.

A release may negate the duty element of a negligence action.” As we have noted, in order to absolve itself of responsibility for any ordinary negligence, it was 24 Hour’s burden to establish the validity of the release “as applied to the case at hand.”

Generally, a person who signs an instrument may not avoid the impact of its terms on the ground that she failed to read it before signing. However, a release is invalid when it is procured by misrepresentation, overreaching, deception, or fraud. “It has often been held that if the releaser was under a misapprehension, not due to his own neglect, as to the nature or scope of the release, and if this misapprehension was induced by the misconduct of the releasee, then the release, regardless of how comprehensively worded, is binding only to the extent actually intended by the releaser.”

The defendant argued there was no evidence that the employee made affirmative representations that the plaintiff to believe she was signing anything other than what was in front of her, the release.

Another significant issue the court found was the failure of the defendant employee to follow his own policy in this case and find a Spanish-speaking employee to translate. The defendant argued it had no duty to translate the release to the plaintiff.

However, the court stated it does not require a strong showing of misconduct to go to a jury on fraud and misrepresentation, only a slight showing. “A strong showing of misconduct” by the plaintiff is not necessary to demonstrate the existence of a triable issue of fact here; only a “‘slight showing'” is required.

Here, if a jury were to be persuaded that Wilbourn made misrepresentations to Etelvina about the contents of the agreement by making nonverbal gestures indicating that what she was signing related only to being allowed to exercise if she paid the price on the computer screen, it would be entitled to find that Etelvina’s signature on the release was produced by misrepresentation and that the release is not enforceable against her.

Looking at all the facts and inferences construed in the favor of the plaintiff the court found the evidence could be interpreted by a jury to be fraud.

The last issue and the one that should be a clear warning to all, is the change in the risk by the defendant after the plaintiff signed the release. The person signing the release assumes the standard safety precautions are being undertaken by the defendant at the time the release is signed. If those precautions are changed, meaning increased by the defendant after the release is signed, the release may be unenforceable.

On appeal, plaintiffs also contend that the release is unenforceable because a release only encompasses risks that are foreseeable at the time it is signed, and it was not reasonably foreseeable that 24 Hour would intentionally increase the risk of danger to its treadmill users.

However, the plaintiff’s did not raise this argument at the trial court so the court did not rule on it. However, the court clearly thought it would be sufficient to void the release in this case.

So Now What?

There are two clear issues here that everyone should be aware of. The first is if the manufacturer of a product says this is how the product should be used; this can be interpreted as the standard of care and how you MUST use the product. That use of the product includes any safety information the product describes.

The second is any act that could be interpreted as fraudulent can be used to void a release. The release was not voided because the plaintiff could not read or understand it. The release was sent back to determine if the actions of the defendant were fraudulent in inducing the plaintiff to sign the release.

The final issue is the change of the risk after the release is signed. The court seems to say that at the time the release is signed the risk can be assumed by the plaintiff to be the normal risks associated with the activity or sport. If at any time after the release is signed, the actions of the defendant change or increase those risks, the release maybe void by the plaintiff.

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