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Skier assumes the risk on a run he had never skied before because his prior experience.

Assumption of the risk is a bar to claims of negligence in New York for injuries a skier receives at the ski area because of his experience as an expert skier.

Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

State: New York, Supreme Court of New York, Appellate Division, Third Department

Plaintiff: Ron W. Schorpp and his wife

Defendant: Oak Mountain, LLC, et al.

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant ski area

Year: 2016

The plaintiff was a self-described expert skier who had been skiing at the defendant resort weekly and had been skiing for decades. This was the plaintiff’s first time on the particular black diamond run however. The ski run had been recommended to the plaintiff ha by an employee of the defendant.

While skiing the recommended run the plaintiff skied into a depression causing him to flip over and out of his skis suffering injury.

The defendant filed a motion for summary judgment based on assumption of the risk, which the trial court denied. The defendant appealed that ruling resulting in this decision.

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

The appellate court reviewed the definition of assumption of the risk under New York law.

Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation

That assumption of the risk definition when applied to skiing had been defined by another court to include the risk “caused by ruts, bumps or variations in the conditions of the skiing terrain.” Further, assumption of risk is measured against the skill and experience of the particular plaintiff. In this case the plaintiff had decades of experience.

Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope

As such the plaintiff assumed the risk of his injuries. The appellate court granted the defendant’s motion for summary judgment based on assumption of the risk.

So Now What?

Assumption of the risk is making a comeback. Once gone when it was merged into contributory negligence, courts are bringing it back to eliminate claims prior to trial. If you assume the risk of your injuries you should not have the opportunity to go to trial.

One argument that was not raised was negligent information or detrimental reliance on the statement or recommendation of the particular run by the ski area employee. The plaintiff did not argue he was injured because he followed the negligent advice of the employee of the defendant

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Ski Area, Skiing, Black Diamond, Oak Mountain, Assumption of the Risk, trail, skiing,  summary judgment, depression, ski, risk of injury, black-diamond, downhill, skied, sport, skill, skis,

 

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Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

Ron W. Schorpp et al., Respondents, v Oak Mountain, LLC, et al., Appellants.

522405

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

October 20, 2016, Decided

October 20, 2016, Entered

COUNSEL:  [***1] Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants.

Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel), for respondents.

JUDGES: Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ. Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

OPINION BY: Aarons

OPINION

[*1136]  [**296]   Aarons, J.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Sise, J.), entered November 5, 2015 in Fulton County, which denied defendants’ motion for summary judgment dismissing the complaint.

Plaintiff Ron W. Schorpp, a self-described “expert skier,” was  [*1137]  injured while skiing down a trail at defendant Oak Mountain Ski Center (hereinafter Oak Mountain), which is operated by defendant Oak Mountain, LLC in the Village of Speculator, Hamilton County. Schorpp testified that an Oak Mountain employee recommended  [**297]  a black-diamond trail to him. Schorpp and his daughter planned to ski down this trail and meet his wife and other children at a subsequent juncture of trails. Approximately three quarters of the way down the trail, Schorpp skied into a “depression” that was filled with snow. The skis got caught in the depression causing Schorpp to flip over and fall out of his skis. Schorpp, and [***2]  his wife derivatively, subsequently commenced this negligence action against defendants. Following joinder of issue and discovery, defendants moved for summary judgment. Supreme Court denied the motion and defendants now appeal. We reverse.

Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; see Martin v State of New York, 64 AD3d 62, 63-64, 878 N.Y.S.2d 823 [2009], lv denied 13 NY3d 706, 915 N.E.2d 1181, 887 N.Y.S.2d 3 [2009]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958, 862 N.Y.S.2d 626 [2008]). Regarding downhill skiing, an individual “assumes the inherent risk of personal injury  caused by ruts, bumps or variations in the conditions of the skiing terrain” (Ruepp v West Experience, 272 AD2d 673, 674, 706 N.Y.S.2d 787 [2000]; see General Obligations Law § 18-101; Hyland v State of New York, 300 AD2d 794, 794-795, 752 N.Y.S.2d 113 [2002], lv denied 100 NY2d 504, 793 N.E.2d 411, 762 N.Y.S.2d 874 [2003]; Dicruttalo v Blaise Enters., 211 AD2d 858, 859, 621 N.Y.S.2d 199 [1995]). The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607, 762 N.Y.S.2d 703 [2003]).

We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing (see Jordan v Maple Ski Ridge, 229 AD2d 756, 757, 645 N.Y.S.2d 598 [1996]). Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. [***3]  Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope (see Painter v Peek’N Peak Recreation, 2 AD3d 1289, 1289-1290, 769 N.Y.S.2d 678 [2003]; Ruepp v West Experience, 272 AD2d at 674; Giordano v Shanty  [*1138]  Hollow Corp., 209 AD2d 760, 761, 617 N.Y.S.2d 984 [1994], lv denied 85 NY2d 802, 648 N.E.2d 792, 624 N.Y.S.2d 372 [1995]; Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558, 559, 602 N.Y.S.2d 655 [1993], lv denied 83 NY2d 754, 634 N.E.2d 979, 612 N.Y.S.2d 378 [1994]). In opposition, plaintiffs failed to raise an issue of fact as to whether defendants concealed or unreasonably increased the risks to which Schorpp was exposed (see Sontag v Holiday Val., Inc., 38 AD3d 1350, 1351, 832 N.Y.S.2d 705 [2007]; Ruepp v West Experience, 272 AD2d at 674). Accordingly, Supreme Court erred in denying defendants’ motion for summary judgment.

Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, and motion granted.

 


“Marketing makes promises Risk Management has to pay for” in this case, the marketing eliminated the protection afforded by the warning labels

Cornell and a manufacturer of a piece of equipment used in a gym at Cornell were being sued by an injured student who used the equipment. The court definitely was leaning towards the student; however, the student had come to court prepared, (and backed by a lot of money I’m guessing.)

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania

Plaintiff: Randall Duchesneau

Defendant: Cornell University and Tumbltrak

Plaintiff Claims: Product Liability, Failure to Warn, requesting punitive damages

Defendant Defenses:

Holding: No duty, Failure to state a claim, Assumption of Risk & Release?

Year: 2012

This case spent four years getting to this point, and it is obvious the court is a little tired of the litigation. Consequently, the facts are difficult to determine.

It seems the plaintiff was a beginning gymnast and injured himself on a piece of equipment at the Cornell University gym called the Tumbletrak. The extents of his injuries are never clear, but based on the number of experts the plaintiff hired and the lengthy fight; I guess his injuries were extensive.

This case was being heard in a Pennsylvania Federal Court with a Michigan and a New York Defendant. That fact alone is confusing.

The decision is based on motions for summary judgment filed by both Cornell and the manufacturer Tumbletrak.

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

The court first examines the manufacture’s motion for summary judgment. The first issue the manufacturer claimed the plaintiff failed to establish the minimum facts necessary to go to trial; the plaintiff is not entitled to punitive damages, and the plaintiff assumed the risk. The court first looked at what was required to establish a failure to warn case. Meaning a manufacturer has a duty to warn users of the product of the risks and failed to do so.

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause of the injury to plaintiff; and (4) the plaintiff suffered loss or damage.

The burden is on the plaintiff to prove the failure to warn of the risk by the manufacturer was the cause of the plaintiff’s injury.

This burden includes adducing proof that a user of the product at issue would have read and heeded a warning had one been given. Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.”

Failure to warn can be denied both by proving the plaintiff read and heeded the risk or knew of the risk prior to using the equipment. The manufacturer argued the risk was open and obvious, which does not require proof because the plaintiff should have seen the risk.

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding

In a footnote at this point, the court states the plaintiff signed a release stating he understood the risks; however, nothing else is mentioned about the release in the rest of the decision.

One way to defend against a motion for summary judgment is to argue there are enough facts or issues that make the facts relied upon by the defendant an issue.  Meaning if enough facts are in dispute, the motion for summary judgement cannot be granted. This is what the plaintiff did through his experts.

Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. [Emphasize added]

Here the manufacturer shot his defense down before the product left the assembly plant by confusing risk management and marketing. Teddy bears doing the activities unspotted that the warning allegedly warns against eliminated the warning in the court’s eyes. (And rightfully so!) If the manufacturer shows cartoons doing the act without regard for safety, then the act must be safe, no matter what the warning says. If the warning can be located.

In a scary statement, the court held that failure to read the warnings on the product is not an issue in a failure to warn case.

However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”

The court based this analysis on the many different statements by witnesses who seemed to go in every direction, but all stated they never saw the warning.

Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter.

A warning does not exist unless the consumer can’t miss it. Meaning the warning must be in the consumer’s face every time they go to use a product. On top of that the warning must be in the manual, in some states on the packaging and maybe on a hangtag with the product.

The failure to warn claim was sustained and would be decided at trial.

The court then looked at the assumption of the risk defense brought by the defendant manufacturer. The court started this analysis looking at the requirements to prove a negligence claim in a product case.

To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff.

However, assumption of the risk in a product’s case is a little more stringent then in a recreation case. “Assumption of risk is frequently applied to claims arising out of participation in sporting events.” In sporting or recreation cases, the risk is clear and understood by all involved and to be effective the risk was not altered or enhanced by the defendant. In a product’s case the requirements are slightly different.

Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. To establish assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” This determination depends in part on the openness and obviousness of the risk.

Again, the case goes back to did the plaintiff know of the risks. Where the risks open and obvious or can you prove under the law the plaintiff knew of the risk. Because no one ever saw the warning, the warning had no value. That left it up to a jury to decide if the plaintiff knew the risk of the sport or activity.

The next argument was a motion to eliminate a punitive damages claim by the manufacturer arguing the case should be tried under Michigan’s law because the manufacturer was based in Michigan. Michigan does not allow punitive damages, unless they are expressly authorized by statute.

There has been a prior argument about the jurisdiction and venue of the case decided by a prior judge. (Which is alone confusing since none of the defendants are located in Pennsylvania where the court sits, however, the court is applying New York law?) Because of the prior decision, this court followed it and ruled that New York law would be applied to the facts of the case, and punitive damages were going to be at issue.

Cornell University was then giving a shot at its motions starting with the punitive damages issue. Cornell claimed the plaintiff had not presented any evidence that could support a punitive damages claim. The plaintiff responded arguing facts that could prove a punitive damages claim against the university.

(1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.”

The court defined the requirements to prove a punitive damages claim.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”

The court found there was sufficient evidence to support a possible punitive damages claim.

There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

Cornell next argued that the plaintiff assumed the risk and there was no evidence proving causation. Cornell was arguing a breach of a duty was not related to the injury. There was no causation between the two which is required to prove negligence.

The court found that Cornell’s case law did not apply correctly to the facts of this case. That means the case law facts were sufficiently different from the facts of this case, that the law could not be interpreted the same way. “Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here.”

On the causation issues the judge found the plaintiff had presented enough evidence that there could be an issue leading to punitive damages against the college.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

Both defendants failed in their motion for summary judgment, and the decision was to allow the case to proceed to trial.

So Now What?

I have not been able to find the outcome of this case. Meaning it probably settled. The entire issue was the warning on the product; it was not clear; it was not visible, and it could not be seen in normal use.

If you manufacture products and your product poses a risk to the user, then you need to notify the consumer as often and as many were possible that you can. User manuals, hangtags, the container or bag the product is shipped in and on the product itself. It is also not enough that you can say the label or warning is there; the user must be able to see the warning……every time.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Randall Duchesneau, Plaintiff, v. Cornell University, et al., Defendants.

CIVIL ACTION NO. 08-4856

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2012 U.S. Dist. LEXIS 106412

July 31, 2012, Decided

July 31, 2012, Filed

PRIOR HISTORY: Duchesneau v. Cornell Univ., 2011 U.S. Dist. LEXIS 135211 (E.D. Pa., Nov. 22, 2011)

CORE TERMS: warning, summary judgment, trampoline’s, assumption of risk, punitive damages, unaware, gymnasium, warn, partial, failure to warn, novice, user, assumed risk, inappropriate, punitive, flip, matter of law, warning label, recklessness, supervision, performing, gymnastic, enhanced, hazard, adduce, facie, causation, choice of law, applicable law, case of failure

COUNSEL:  [*1] For RANDALL DUCHESNEAU, Plaintiff: STEWART J. EISENBERG, LEAD ATTORNEY, DANIEL JECK, DANIEL JOSEPH SHERRY, JR., DINO PRIVITERA, KENNETH MICHAEL ROTHWEILER, EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C., PHILADELPHIA, PA; MICHAEL CHOI, CHOI & ASSOCIATES, ELKINS PARK, PA.

For CORNELL UNIVERSITY, Defendant, Cross Claimant: RICHARD B. WICKERSHAM, JR., LEAD ATTORNEY, POST & SCHELL, P.C., PHILADELPHIA, PA; JOE H. TUCKER, JR., THE TUCKER LAW GROUP, ONE PENN CENTER AT SUBURBAN STATION, PHILADELPHIA, PA.

For TUMBLTRAK, Defendant, Cross Defendant: DANIEL J. MCCARTHY, SUSAN R. ENGLE, LEAD ATTORNEYS, MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS LLP, PHILADELPHIA, PA.

JUDGES: C. DARNELL JONES, II, UNITED STATES DISTRICT JUDGE.

OPINION BY: C. DARNELL JONES, II

OPINION

Jones, II, U.S.D.J.

MEMORANDUM

Before the Court is Defendant Tumbl Trak’s (“T-Trak”) Motion for Partial Summary Judgment (Docket No. 169); Cornell University’s Motion for Summary Judgment (Docket No. 171); Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172); and extensive briefing related thereto. 1

1 This matter has been crawling along, with a stunning amount of motion practice and briefing, for years now. The parties and  [*2] this Court are well aware of the tortured factual and procedural background of this case, and setting it forth at length again here would be a waste of judicial resources. Rather, I limit the discussion herein to specific facts as may be relevant to resolution of the Motion.

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which  [*3] that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and “must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).

T-Trak’s Motion for Partial Summary Judgment

T-Trak seeks partial summary judgment on three bases: (1) Plaintiff cannot establish a prima facie case of failure to warn; (2) Plaintiff is not entitled to punitive damages; and (3) Plaintiff assumed the risk of serious injury when using the Tumbl Trak apparatus (“TTA”). I address these seriatim.

Failure to Warn

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause  [*4] of the injury to plaintiff; and (4) the plaintiff suffered loss or damage. Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 179 (E.D.N.Y. 2008); McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997). The duty to warn can be breached by either “the complete absence of warnings as to a particular hazard,” or “the inclusion of warnings which are insufficient.” Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 610 (N.Y. App. Div. 1992). The adequacy of a warning is normally a question of fact to be determined at trial. Nagel v. Bros. Int’l Foods, Inc., 34 A.D.3d 545, 825 N.Y.S.2d 93, 95 (N.Y. App. Div. 2006).

2 On November 23, 2011, U.S. Magistrate Judge Lynne A. Sitarski analyzed choice of law inquiries in this case and determined New York law applies throughout. Additionally, no party disputes the application of New York law to the failure to warn and assumption of risk claims here. Accordingly, I apply New York law to those claims.

Plaintiff has the burden of proving that T-Trak’s failure to warn was a proximate cause of his injury. See Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282, 285 (N.Y. App. Div. 2007). This burden includes adducing proof that a user of the product at issue would have read and heeded  [*5] a warning had one been given. Sosna v. Am. Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (N.Y. App. Div. 2002). Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.” Humphrey, 556 F. Supp. 2d at 179-80 (citing Liriano v. Hobart Corp. (Liriano I), 92 N.Y.2d 232, 700 N.E.2d 303, 308, 677 N.Y.S.2d 764 (1998)).

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” Def.’s Mot. Part. Summ. J. (hereinafter “Def.’s Br.”) 21. More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding [TTA].” Id. T-Trak relies on, inter alia, the following record evidence:

o “Plaintiff, educated in physics, knew that what goes up will come down.” Id. 22; see id. Ex. H, at 380-81.

o Plaintiff  [*6] signed a waiver that stated he understood the risks and dangers associated with gymnastics. Id. Ex. F.

o There was a small warning label on the TTA which stated that any activity “creates the possibility of catastrophic injury, including paralysis or even death from falling on the head or neck. Id. Ex. G.

o Plaintiff “was aware of the safety concept of spotting and had done it in high school as a member of the cheerleading squad.” Id. 23; see id. Ex. H, at 432.

 

Based on these facts, T-Trak contends that “common sense” would have informed an individual that he or she was risking landing on their head by using the TTA, and, as such, T-Trak had no legal duty to warn Plaintiff. Id. 24.

However, there are significant disputes of material fact as to which, if any, hazards associated with the TTA were open and obvious (i.e., could be objectively ascertained) by a similarly-situated novice gymnast. Notably, Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA,  [*7] not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. Pl.’s Resp. Def. T-Trak’s Mot. Part. Summ. J. (hereinafter “Pl.’s Resp. Br.”) Ex. D, at 8-9. Dr. Vigilante’s report clearly suggests there were conflicting messages as to (1) the dangers associated with particular uses of the TTA; (2) how novices should perform backflips off the TTA; and (3) what is the appropriate level of supervision for safety purposes while using the TTA. Dr. Vigilante’s view of the facts is obviously in conflict with that of T-Trak. Cf. Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 798 N.Y.S.2d 629, 631 (N.Y. App. Div. 2005) (triable issue of fact concerning sufficiency of warnings raised through expert).

Apparently as a fallback position, T-Trak also asserts that because Plaintiff never sought to view the warnings prior to his accident, he cannot advance a failure to warn claim. However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.” Johnson, 588 N.Y.S.2d at 611.  [*8] This fact alone is insufficient to secure summary judgment. See Humphrey, 556 F. Supp. 2d at 180-81 (holding plaintiff’s admission that he did not read the warning label or operating instructions on equipment not dispositive under New York law in connection with failure to warn claim). Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. 3 Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter. 4 See Pl.’s Resp. Br. Ex. T.

3 This evidence is buttressed by the fact that T-Trak’s own warnings expert testified at his deposition that the warnings on the TTA were deficient, illegible, and violative of relevant industry standards pertaining to size. Pl.’s Resp. Br. Ex. S.

4 I do not find T-Trak’s argument that Plaintiff submitted a “sham affidavit” to be convincing.

In sum, this evidence of record establishes  [*9] sufficient material disputes of fact as to the level of awareness Plaintiff or any other objective, novice gymnast would have had concerning the danger of specific injuries while performing specific maneuvers on the TTA. Moreover, T-Trak has been unable to adduce undisputed evidence that Plaintiff would have disregarded a proper warning. Accordingly, summary judgment on the failure to warn claim is inappropriate.

Assumption of Risk

T-Trak contends it is entitled to summary judgment on Plaintiff’s negligence claim based on the principle of assumption of risk. 5 To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff. Martinez v Capital One, N.A.,     F. Supp. 2d    , 2012 U.S. Dist. LEXIS 42214, No. 10 Civ. 8028(RJS), 2012 WL 1027571, at *10 (S.D.N.Y. Mar. 27, 2012). Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 431 (S.D.N.Y. 1999); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 967-68, 510 N.Y.S.2d 49 (1986). To establish  [*10] assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” Hedstrom, 76 F. Supp. 2d at 432 (citing Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490, 495 (N.Y. App. Div. 1993)). This determination depends in part on the openness and obviousness of the risk. Id.

5 This argument applies only to Plaintiff’s negligence claim, as New York law does not favor an assumption of risk defense to strict liability claims. Auto. Ins. Co. of Hartford v. Electrolux Home Prods., Inc., 2011 U.S. Dist. LEXIS 12652, 2011 WL 1434672, at *2 (W.D.N.Y. 2011).

Assumption of risk is frequently applied to claims arising out of participation in sporting events. See, e.g., Goodlett v. Kalishek, 223 F.3d 32, 34 (2d Cir. 2000) (airplane racing); Rochford v. Woodloch Pines, Inc., 824 F. Supp. 2d 343, 349-51 (E.D.N.Y. 2011) (golf); Ducrepin v. United States, 964 F. Supp. 659, 664-65 (E.D.N.Y. 1997) (basketball); Mc Duffie v. Watkins Glen Int’l, Inc., 833 F. Supp. 197, 201-02 (W.D.N.Y. 1993) (auto racing); Morgan v. State, 90 N.Y.2d 471, 481-82, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997) (bobsledding and karate, but not tennis where facility’s negligence in failing to repair torn net unduly increased  [*11] the risk); Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650, 541 N.E.2d 29, 33-34, 543 N.Y.S.2d 29 (1989) (football); Joseph v. N.Y. Racing Ass’n, 28 A.D.3d 105, 809 N.Y.S.2d 526, 529 (N.Y. App. Div. 2006) (horseback riding); Hawley v. Binghamton Mets Baseball Club Inc., 262 A.D.2d 729, 691 N.Y.S.2d 626, 627-28 (N.Y. App. Div. 1999) (baseball). It has even been applied in some (but not all) cases involving jumping on a trampoline. 6 However these cases have a unifying theme — clear risks that were known yet disregarded by the plaintiff, with no negligence by the defendant that enhanced the risk. In cases where the plaintiff was unaware of the risk, or where the defendant’s negligence amplified the risk, summary judgment has not been granted. See, e.g., Clarke v. Peek ‘N Peak Recreation, Inc., 551 F. Supp. 2d 159, 163 (W.D.N.Y. 2008) (ski resort owner’s alleged negligence may have enhanced assumed risk); Hedstrom, 76 F. Supp. 2d at 435-36 (beginning trampoline user unaware and not sufficiently warned of risks); Repka, 798 N.Y.S.2d at 632-33 (assumed risk unduly increased by use of defective snowmobile without adequate warnings); Kroll, 764 N.Y.S.2d at 731 (plaintiff unaware of risk of trampoline’s defect). T-Trak argues vociferously that “Plaintiff  [*12] should have been aware of the risk of injury.” Def.’s Br. 31 (emphasis added). While it is true that Plaintiff had some experience with cheerleading and gymnastics, there is evidence he was a novice nonetheless. Additionally, as discussed supra, there is direct testimony that Plaintiff did not view any warnings and thus was not made explicitly aware of the contents thereof. There is further, disputed testimony as to the reasons why Plaintiff was unaware of the warnings, including evidence that the warnings were patently insufficient and no participant saw or became aware of their contents that day. The survey of trampoline cases herein makes it clear that the use of a trampoline has not been deemed inherently risky as a matter of New York law. All of these relevant disputes — namely, as to Plaintiff’s expertise, knowledge, the sufficiency and quality of the warnings, and the obvious nature of the risk to a casual user of the TTA — preclude this Court from absolving T-Trak on the grounds of assumption of risk. T-Trak’s duty to Plaintiff, if any, is properly an issue for trial.

6 Application of assumption of risk is a fact-specific endeavor, including in trampoline cases, which tend to  [*13] be decided depending on whether the plaintiff was aware of and appreciated the risk in using the trampoline. A plaintiff may prevail where he adduces evidence that he was unaware of the risk of using a trampoline and that he used the trampoline in an ordinary fashion. See, e.g., Hedstrom, 76 F. Supp. 2d at 427, 435 (finding no assumption of risk where plaintiff was a total beginner who did not see warning label and who used trampoline in a “fairly typical manner”); Kroll v. Watt, 309 A.D.2d 1265, 764 N.Y.S.2d 731, 731 (N.Y. App. Div. 2000) (affirming denial of summary judgment on assumption of risk where plaintiff’s awareness of risk of trampoline tipping over and thus causing plaintiff’s injury was a triable issue of fact). On the other hand, assumption of risk applies where the risk of the activity is inherent or where the injured party fully understands, appreciates, and voluntarily assumes the risk through participation. Goodlett, 223 F.3d at 36-37. New York courts have barred the recovery of plaintiffs injured while jumping on a trampoline where the plaintiff was aware of the risk or performed a particularly risky maneuver. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006)  [*14] (affirming application of assumption of risk where plaintiff failed to provide evidence that he was unaware of risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (2005) (finding assumption of risk where plaintiff was aware and appreciative of risk of using trampoline and used it nonetheless); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 728 (N.Y. App. Div. 1998) (holding assumption of risk applicable where plaintiff ignored sign warning against use of trampoline by two or more participants at the same time and then engaged in such activity).

Punitive Damages

U.S. Magistrate Judge Lynne A. Sitarski thoroughly and cogently examined choice of law issues in this case in deciding Defendant Cornell University’s Motion to Establish Applicable Law. See Duchesneau v. Cornell Univ., No. 08-4856, 2011, 2011 U.S. Dist. LEXIS 135211, WL 5902155, at *1 (E.D. Pa. Nov. 23, 2011) (order granting applicable law). T-Trak did not participate in the Motion to Establish Applicable Law. Rather, T-Trak asserts in the instant Motion that, while New York law is almost universally applicable in this case, Michigan law operates to bar recovery of punitive damages. In short, T-Trak contends that because it is domiciled  [*15] in Michigan and the alleged punitive conduct (design and labeling of the product) occurred in Michigan, Michigan law should apply to Plaintiff’s claim for punitive damages. Unsurprisingly, Michigan law bars punitive damage awards unless expressly authorized by statute, which is not the case here. See Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391, 400 (2004). Plaintiff maintains that New York law properly governs all aspects of this matter, including his punitive damages claim. New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton v. Brown & Williamson Holdings, Inc., 498 F. Supp. 2d 639, 653 (S.D.N.Y. 2007).

Judge Sitarski aptly laid out the applicable conflicts of law framework and conducted a thorough analysis of asserted interests, and this Court need not repeat the legal discussion at length here. Judge Sitarski concluded that New York law applied to Plaintiff’s claims against Cornell, including with regard to punitive damages and contributory negligence. I reach the same conclusion as to T-Trak for substantially the same reasons. Here, T-Trak knew the TTA was to be delivered and used in New York, and, indeed,  [*16] the TTA was used continuously in New York for many years prior to the accident. Generally speaking, courts applying the Pennsylvania choice of law contacts analysis to product liability matters have applied the law of the state where the product was used and where the accident occurred. Shields v. Consol. Rail Corp., 810 F.2d 397, 399-400 (3d Cir. 1987); U.S. Airways, Inc. v. Elliott Equip. Co., Inc., 2008 U.S. Dist. LEXIS 76043, 2008 WL 4461847 (E.D. Pa. Sept. 29, 2008). Plaintiff’s accident was non-fortuitous, and therefore great deference is given to New York as to the law which should apply. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069 (3d Cir. 1996).

Under the contacts analysis, New York has many compelling interests here: (1) the TTA is located in New York; (2) the accident occurred in New York; (3) Cornell contracted to purchase the TTA in New York; (4) Plaintiff was a student in New York; (5) Plaintiff, although a Pennsylvania resident, received treatment for his injuries in New York; and (6) the key Waiver Agreement in this case governs activities in New York and has its validity determined by New York law. The contacts with Michigan are markedly less. T-Trak’s headquarters is in Michigan. Some design and  [*17] testing of the TTA took place in Michigan. However, the TTA and its warnings were designed by a Washington resident, and the component parts of the TTA were manufactured in multiple states other than Michigan (including the pads which containing the warnings). The actual T-Trak dealer who negotiated the New York contract of sale for the TTA with Cornell was based in Georgia. Finally, the TTA was assembled in New York by Cornell from constituent pieces delivered from various locations. 7

7 These circumstances are readily distinguishable from those in Kelly v. Ford Motor Co., 933 F. Supp. 465 (E.D. Pa. 1996), upon which T-Trak heavily relies. In Kelly, much of the design, testing, assembly, and warning label placement occurred in various Michigan locales under the close coordination of Ford. As mentioned above, T-Trak did not even manufacture or assembly any parts of the TTA in Michigan. Kelly is not persuasive.

Accordingly, I conclude New York law applies to the question of punitive damages against T-Trak. Upon review of the record, I find Plaintiff has adduced sufficient evidence to allow the claim for punitive damages to proceed.

Cornell’s Motion for Partial Summary Judgment on Punitive [*18] Damages

Cornell claims that Plaintiff has failed to adduce any evidence that could justify punitive damages under New York law. Plaintiff responds that “Cornell’s relevant conduct is textbook-appropriate” in terms of punitive damages for multiple reasons: (1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.” See Pl.’s Resp. Opp’n Def. Cornell’s Mot. Summ. J. Punit. Damages 2-3.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton, 498 F. Supp. 2d at 653. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct  [*19] constitutes willful or wanton negligence or recklessness.” Buckholz v. Maple Garden Apts., LLC, 38 A.D.3d 584, 832 N.Y.S.2d 255, 256 (N.Y. App. Div. 2007); see also Mahar v. U.S. Xpress Enters., 688 F. Supp. 2d 95, 110 (N.D.N.Y. 2010) (allowing punitive damages in rare cases of egregious and willful conduct that is morally culpable); Black v. George Weston Bakeries, Inc., No. 07-CV-853S, 2008, 2008 U.S. Dist. LEXIS 92031, WL 4911791, at *7 (W.D.N.Y. Nov. 13, 2008) (permitting punitive damages where conduct constitutes conscious disregard of others); Bohannon (ex rel. Estate of Dolik) v. Action Carting Envtl. Servs., Inc., No. 06-CV-5689 (JG), 2008 U.S. Dist. LEXIS 40516, 2008 WL 2106143, at *3 (E.D.N.Y. May 20, 2008) (recognizing utter indifference to the safety of others warrants granting punitive damages).

Upon review of the record, I concur with Plaintiff that there is more than enough evidence to allow Plaintiff’s punitive damages claim to proceed. There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would  [*20] amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

III. Cornell’s Motion for Summary Judgment

Cornell moves for summary judgment on two bases: (1) Plaintiff assumed the risk of using the TTA and Cornell had no duty to supervise the use of gymnastic equipment by novices, and (2) there is no evidence as to causation concerning Cornell. There are so many material disputes of fact between Plaintiff and Cornell that a lengthy explication of them would be a waste of resources. Suffice it to say that, despite occasional rhetoric to the contrary, Plaintiff and Cornell disagree about nearly every major fact or opinion of record that relates to the issues raised in the Motion. 8 Specific to assumption of risk (discussed supra), there are considerable disputes over whether Plaintiff knew or appreciated the risks of the TTA. Cornell’s  [*21] assertions to the contrary appear to be mostly self-serving statements. Because Plaintiff has adduced plentiful evidence (testimony, admissions, experts) in support of the position that he was not aware of the relevant risk and could not be expected to be aware of that risk, summary judgment is obviously inappropriate. 9

8 These two parties have repeatedly filed briefs of excessive length (50-100 pages each), including unnecessary bolded or italicized text for emphasis, in which they highlight disputes of fact ad infinitum.

9 This conclusion is buttressed by the fact that, as discussed supra, there are even disputes of material fact as to whether (1) the risk of harm was obvious, open, or hidden, and (2) the risk of harm was enhanced by Cornell’s own actions.

Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006) (finding experienced gymnast with six years of instruction assumed known risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (N.Y. App. Div. 2005) (holding plaintiff assumed risk of using trampoline where she failed to  [*22] adduce evidence that she was unaware of the potential for injury); Palozzi v. Priest, 280 A.D.2d 986, 720 N.Y.S.2d 676, 676 (N.Y. App. Div. 2001) (affirming application of assumption of risk to teenager injured while “fake wrestling” on trampoline); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 729 (N.Y. App. Div. 1998) (noting plaintiff assumed risk of “double jumping” despite warnings on trampoline that were deemed adequate as a matter of law); Williams v. Lombardini, 38 Misc. 2d 146, 238 N.Y.S.2d 63, 64-65 (N.Y. Sup. Ct. 1963) (determining plaintiff assumed risk where he admitted seeing rule that prohibited “difficult tricks” but attempted front flip on trampoline anyway). As discussed supra, summary judgment based on assumption of risk is inappropriate where there is a question as to appreciation or understanding of risk. 10 See Hedstrom, 76 F. Supp. 2d at 435-36 (recognizing no assumption of risk by beginning trampoline user who was unaware and not sufficiently warned of risks); Kroll, 764 N.Y.S.2d at 731 (deciding plaintiff did not assume risk because she was unaware of trampoline’s defect). Application of assumption of risk at summary judgment is especially inappropriate here because New York law disfavors using the  [*23] doctrine in cases where there are allegations of reckless or intentional conduct, or concealed or unreasonably increased risks. 11 Morgan, 90 N.Y.2d at 485; see, e.g., Charles v. Uniondale Sch. Dist. Bd. of Educ., 91 A.D.3d 805, 937 N.Y.S.2d 275, 276-77 (N.Y. App. Div. 2012) (denying summary judgment where issues of fact existed as to whether defendant unreasonably increased risk by failing to provide head and face protection to plaintiff lacrosse player); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 925 N.Y.S.2d 785, 788 (N.Y. App. Div. 2011) (rejecting summary judgment because plaintiff submitted evidence that defendant’s negligent failure to stop ski lift caused plaintiff’s injuries); Repka, 798 N.Y.S.2d at 632-33 (dismissing summary judgment motion because lack of adequate warnings may have unduly enhanced snowmobile’s concealed defect). In short, I do not find that Cornell is entitled to judgment as a matter of law based on the assumption of risk doctrine.

10 Cornell argues that the warning notice on the TTA itself establishes total assumption of risk. However, a vast portion of the evidence in this case (almost all of it disputed) is about whether the TTA’s warnings were seen, sufficient, or effective. In  [*24] other words, Cornell relies on a highly disputed factual conclusion concerning the adequacy of the warning to justify summary judgment on assumption of risk grounds. This Court cannot follow.

11 I am completely unpersuaded by Cornell’s argument concerning its total lack of a duty of care to a novice student using equipment in the Teagle Gymnasium. N.Y. Gen. Oblig. Law § 5-326 (McKinney 1976) (voiding gymnasium waivers); Eddy v. Syracuse Univ., 78 A.D.2d 989, 433 N.Y.S.2d 923 (App. Div. 1980) (concluding questions of negligence, foreseeability of injury, and duty to protect gym users are all proper issues for a jury); Lorenzo v. Monroe Comm. Coll., 72 A.D.2d 945, 422 N.Y.S.2d 230 (1979) (finding questions of fact existed as to whether defendant provided adequate supervision in gymnasium). Much of Cornell’s arguments are bootstrapped onto a conclusion of assumption of risk — i.e., because a student assumed the risk, the defendant college owes no duty with respect to the dangers inherent in the activity. As discussed, this Court cannot conclude at this stage that there was any assumption of risk. In addition, this Court will not revisit its previous rulings as to the issue of the prior academic year waiver despite Cornell’s  [*25] apparent invitation.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). 12 Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

12 Cornell spends considerable time “debunking” these experts in briefs, often by reference to the testimony of others. By doing so, Cornell highlights some of the very disputes that preclude summary judgment.

Conclusion

Tumbl Trak maintains that Plaintiff cannot prove it inadequately warned him against use of its product.  [*26] Cornell suggests that this case involves nothing more than a “luckless accident” that resulted from Plaintiff’s voluntary participation in vigorous athletic activity. Plaintiff disagrees. He believes that he was harmed by (1) a device with grossly inadequate warnings, and (2) an institution which engaged in a course of conduct of gymnasium operation and supervision which was reprehensible and reckless. Based on the record before me, Plaintiff is entitled to put these questions to a jury.

An appropriate Order follows.

ORDER

AND NOW, this 31st day of July, 2012, it is hereby ORDERED that:

  1. Defendant Tumbl Trak’s Motion for Partial Summary Judgment (Docket No. 169) is DENIED.
  2. Cornell University’s Motion for Summary Judgment (Docket No. 171) is DENIED.
  3. Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172) is DENIED.
  4. The Case Management Order dated April 20, 2012 remains in force.

In addition, this Court has briefly reviewed the initial pre-trial filings in this matter and noticed that they do not conform with the Chambers Policies and Procedures, available at http://www.paed.uscourts.gov. The rules contained therein are not optional, and are to be followed  [*27] to the letter. No party has ever represented to this Court that they cannot work with their colleagues to fulfill their responsibilities under these procedures. Here, it appears the parties have, at least, failed to properly prepare their joint proposed jury instructions and joint proposed voir dire. Instead, three different versions of each document were separately filed by three different parties — a situation that the Chambers Policies obviously sought to preclude. The parties are specifically directed to review the Chambers Policies and Procedures, Civil Cases, Subsection E, which provide two pages of instructions as to the proper preparation and presentation of these and other pre-trial submissions. 13 It is ORDERED that the parties promptly withdraw any non-conforming filings and submit appropriately-prepared ones by August 31, 2012.

13 Parties are expected to be familiar with all Policies and Procedures by the time of the final pre-trial conference, especially the items concerning exhibits, courtroom operation, and attorney conduct during a trial.

BY THE COURT:

/s/ C. Darnell Jones, II

  1. DARNELL JONES, II, U.S.D.J.

 


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1.3.1.1.       Applications

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2.2.4.4.        

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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.