Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Court of Appeals of Tennessee, At Knoxville

January 16, 2018, Session; March 28, 2018, Filed

Reporter

CAROLYN CRISP v. MICHAEL NELMS, ET AL.

Subsequent History: Request granted Crisp v. Nelms, 2018 Tenn. LEXIS 401 (Tenn., Aug. 8, 2018)

Later proceeding at Crisp v. Nelms, 2018 Tenn. LEXIS 503 (Tenn., Aug. 9, 2018)

Prior History: Tenn. R. App. P. 3 [*1]
Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded. Appeal from the Circuit Court for Blount County. No. L-18929. Rex H. Ogle, Judge.

Disposition: Judgment of the Circuit Court Reversed; Case Remanded.

Counsel: David T. Black, Melanie E. Davis, and Carlos A. Yunsan, Maryville, Tennessee, for the appellant, Carolyn Crisp.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Michael Nelms. Rick L. Powers and William A. Ladnier, Knoxville, Tennessee, for the appellee, George Long.

Judges: D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Opinion by: D. MICHAEL SWINEY

Opinion

This appeal arises from a lawsuit over a fatal cycling accident. Carolyn Crisp (Plaintiff), surviving spouse of William Andrew Crisp (Decedent), sued Michael Nelms (Nelms) and George Long (Long) (Defendants, collectively) in the Circuit Court for Blount County (the Trial Court) for negligence. Decedent and four others, including Nelms and Long, were riding as part of a paceline group when a crash occurred. Nelms asserted comparative fault, stating that Long slowed down suddenly at the head of the line. Long denied he slowed down suddenly. Defendants [*2]
filed motions for summary judgment. The Trial Court held, among other things, that paceline cycling inherently is dangerous and that Decedent was at least 50% at fault for his accident. Plaintiff appealed to this Court. We hold, inter alia, that there is a genuine issue of material fact as to whether Long slowed down suddenly at the head of the line and whether a reasonable jury could find Decedent less than 50% at fault in his accident. We reverse the judgment of the Trial Court and remand for the case to proceed.

OPINION

Background

On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood [*3]
and regular cycling companions, were in their 70s.

The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms front tire struck Longs back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that another rider hit Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.

Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand. On August 22, 2014, Decedent died.

In February 2015, Plaintiff, Decedents widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In [*4]
June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.

Timothy Joganich, a bicycle safety expert testifying for Plaintiff, stated in his deposition:

Q. All right. The last sentence here, The collision with Mr. Nelms bike and the wheel of Mr. Longs
strike that. The collision with Mr. Nelms bike and with the wheel of Mr. Longs bike shows that these duties were breached by Mr. Nelms. That is an opinion you will be giving?

A. Yes.

Q. If Mr. Longs bike slowed suddenly, and Mr. Nelms front wheel contacted Mr. Longs back wheel, would that be a breach of a duty by Mr. Nelms?

A. You have to define suddenly because this is really a control systems problem. The reality is there is a variation in speed of all the cyclists out there, even the one in front. Now, it may be so subtle and so small that you may not perceive it. The fact is that the rider out in front has the duty to maintain a constant pace as possible, and then all the riders following [*5]
have to respond to any variation in input. Now, if for reason the rider out in front had an emergency braking where the following riders would not respond in time, then you are going to have a crash. In this case, I dont see anything in the evidence to support Mr. Long slowing down in a sudden manner to the point where Mr. Nelms could not respond.

Q. Okay. Well, you read Mr. Nelms deposition, did you not?

A. Correct. He said that he slowed down suddenly. But when you look at all the other evidence, even Mr. Nelms said that there was nothing in the roadway that he saw I should backup and say that the only reason why the rider is going to slow down is for some external factors such as something in the roadway Im talking about an emergency type of condition such as a deer runs out or a squirrel runs out, and that happens all the time. It happens to our group, but theres no evidence of anything like that happening. Mr. Long testified that he was going to go at a constant pace all the way to River Road, so theres no reason for him to slow down. The only other reason for him to slow down is he were going to pull off and switch positions, but theres no evidence of that.

Q. Well, [*6]
theres been testimony that there was a strong headwind that day. Are you going to give any opinion about the wind conditions on the day of the accident in question?

A. I will certainly refer to it because that is an issue in the case, and its been discussed in the depositions.

Q. Well, while we are on that topic, and I will cover it again, but I dont see that you give any opinion in your affidavit or in this letter where you discuss the wind conditions. Are you sticking to that?

A. Well, its not going to be a main point. It may be a sub opinion based on some of the main opinions Im talking about. If you asked me, was there a wind at the time, then Im going to talk to you about what the others said and what the climatology report says.

Q. Okay. When Mr. Long says that there was a strong headwind that day, do you have any reason to dispute that?

A. Well, I will say theres conflicting testimony in that regard because Ms. Napers doesnt remember any wind, and Mr. Nelms only suspects that there was a strong wind, so yes, Mr. Long did testify there was a wind. Now, when you look at the climatology records in that time frame, we are talking 8 to 10 miles an hour with the wind coming predominantly [*7]
out of the north, and it gives the wind direction, 330 degrees.

Q. Are you ruling out wind as any possible contribution to any of the accidents?

A. I dont see it playing a significant role.

***

Q. You state in paragraph 16 that the front wheel of Mr. Crisps bicycle subsequently ran into Mr. Nelms. Now, you understand that that statement, that fact, is disputed?

A. Its in the medical records.

Q. That was my next question.

A. Okay.

Q. What do you rely on to come to that conclusion?

A. A couple things. One is primarily the medical records. I will refer you

Q. The medical records of whom?

A. Mr. Nelms. I will refer you to the specific record. Im referring to the Care Today Clinic. Its for Michael Nelms. Lets see if theres a date on it. The date is 2/25/14. The time is 7:23. Under HPI, which is history of the patient, it says, Riding bicycle approximately 22 miles an hour, wrecked, and another rider hit him. When you look at that evidence in the context of all of the other testimony of the other riders that avoided the pileup, logically, you can only conclude it was Mr. Crisp hitting Mr. Nelms. Then Stacy testified that Mr. Crisp hit Mr. Nelms bike. Well, everything is happening so quick, [*8]
but both the bike and Nelms are on the ground, so bike versus Mr. Nelms, so I can see where there would be some confusion, and it may have been both.

James Green, a forensic engineer specializing in bicycle wreck reconstruction hired by Nelms, also was deposed. Green testified in part:

Q. You said you were employed to determine causation. Can you tell us whether or not this accident would have happened but for Mr. Nelms hitting the bicycle in front of him and losing control and wrecking?

A. Well, Im not sure I can answer it the way youve phrased it. If youre – – let me see if I understand your question and Ill try to answer it. Are you asking me if the accident to Mr. Crisp would have occurred if Mr. Nelms had not hit the bike ahead of him, or are you asking me what are you asking me causation, I guess is my question to you, to answer your question?

Q. No. Im asking you this question, and however you interpret it. But my question is, would this accident have happened not have happened but for the fact that Mr. Nelms hit the bicycle in front of him?

A. Im not Im not sure. If you isolate it just to the series of events, I would say it wouldnt. But if youre looking at causation [*9]
in terms of the whole scenario, Im going to say that you basically had four gentlemen in their 70s, and Im 71, riding riding bikes in a tight paceline on a very, very windy day where wind was coming from several different directions over time, and it really isnt an appropriate thing to do, in my opinion. I dont ride pacelines anymore, and I used to race as a pro. So and Im very familiar with riding in that area. I just dont see if youre going to ride in a paceline, even as a pro, in your 20s and 30s, eventually youre going to wreck riding in one. Its just a very dangerous activity. Its not a safe activity.

***

Q. Would you[r] opinion be different if you assume these facts. That Mr. Nelms says that he was struck by another bicyclist, that Mr. Crisp says that he struck Mr. Nelms and thats what caused him to hit and go over the handlebars, and that he had no time to apply his brakes. If those facts were true, would your opinion differ?

A. Well, those first of all, those arent facts. Those are fact statements. Witness statements. And no, it wouldnt change my opinion, because it does not line up with the engineering data that Ive already given you in the record. The [*10]
two of them for me to accept the fact witness statement its got to agree with the engineering, and the engineering is not supporting that statement. Its not supporting your hypothetical on Nelms or your hypothetical on Crisp.

Nelms and Long filed motions for summary judgment in April and May 2016, respectively. In September 2016 following a hearing, the Trial Court entered an order granting Defendants motions for summary judgment. In its oral ruling attached to its order, the Trial Court stated in part:

This is obviously a very tragic case, loss of life and just theres nothing that anybody can do to obviously change this. My first thought, as I have read through these things, is that there is no difference here in how this proceeded than a stock car race. Everybody bunched together.

You know, back in the old days, Dale Earnhardt, Sr., would run you off the road, and there you were off the track, and there you were in the wall. But by its very nature, NASCAR granted higher speeds is different, but theyve got steel and helmets and everything else. This type of activity, in a sense, is no different than that.

These gentlemen were riding together. It is very reasonable to [*11]
assume and well, its a fact that its not seriously disputed that an accident, when they are riding this closely together, is certainly foreseeable on everybodys part. And unfortunately, something happened up front that caused people to slow. But as it relates to Mr. Crisp, the Court would have to leap to assumptions in order to say what he did or what he didnt do, and he owed himself a duty of reasonable care to see what was in front of him and to understand his surroundings as well.

It would also as I have understood it and read it and counsel, this Court, as Ive said many times, I cannot guarantee you Im right, but I guarantee you I try to be right. From my reading of the record, from the affidavits, that there is no basis other than sheer speculation that would allow a jury to find for the plaintiff in this case.

In fact, speculation is pretty much all there is in this case. We could allow them to speculate about certain facts, but the ultimate conclusion is, is that these types of accidents are foreseeable in bicycle racing, especially this close type of racing. We see it all the time. We pass them on the highways. Im not taking well, I think I could take judicial [*12]
notice that cyclists in group activities wreck.

And so these parties chose to engage in this activity. They chose to ride together. Theres testimony throughout about what happens when these cyclists are riding together, about drafting, about various movements on the surface that they are cycling on.

And the Court hates to do it, but the Court does not see how any jury could reasonably find that either of these defendants were negligent in the cause the cause in fact or the proximate cause of the tragic accident and injury and ultimate death o[f] Mr. Crisp.

***

[T]he Court also holds that no jury that the actions of Mr. Crisp were at least his actions were at least fifty percent of the cause of his own accident.

In October 2016, Plaintiff filed a motion to alter or amend and a request for findings of fact and conclusions of law. In May 2017, the Trial Court entered an order denying Plaintiffs motion, stating:

After considering the plaintiffs motion and the responses thereto, the Court finds as follows:

1. That the Memorandum Opinion was issued by the Court and incorporated in the Order Granting the Motion for Summary Judgment on September 29, 2016.

2. That the plaintiff mistakenly [*13]
understood the Court to infer that the parties were racing. That was not the intention nor finding of this Court. The Court was merely referencing to the fact that bumper to bumper activities by automobiles or bicycles can lead to disastrous consequences.

3. That the plaintiffs basic position is that she does not know what happened, but that she wants a jury to try this matter.

4. That taken in a light most favorably to the plaintiff, there are no genuine issues of material fact upon which a claim of negligence against the defendants could be found.

5. That the unexplained cause or causes of the accident in question could not require a finding of negligence.

6. That because Mr. Crisp chose to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries.

From all of which it is hereby ORDERED, ADJUDGED, AND DECREED that the above, along with the Courts Memorandum Opinion, are the findings and fact and conclusions of law, and that no further hearing on this particular issue shall be considered by the Court, and that this order is hereby [*14]
deemed a final order in all respects. Any remaining court costs are hereby taxed to the plaintiff, for which execution shall issue if necessary.

Plaintiff timely appealed to this Court.

Discussion

We restate and consolidate the issues Plaintiff raises on appeal into the following dispositive issue: whether the Trial Court erred in granting summary judgment to Defendants.

As our Supreme Court has instructed regarding appellate review of a trial courts ruling on a motion for summary judgment:

HN1[] Summary judgment is appropriate when 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.
Tenn. R. Civ. P. 56.04. HN2[] We review a trial court
s ruling on a motion for summary judgment de novo, without a presumption of correctness. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare—Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012)). . . .

* * *

HN3[] [I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden [*15]
of production either (1) by affirmatively negating an essential element of the nonmoving partys claim or (2) by demonstrating that the nonmoving partys evidence at the summary judgment stage is insufficient to establish the nonmoving partys claim or defense. We reiterate that HN4[] a moving party seeking summary judgment by attacking the nonmoving partys evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving party to support its motion with a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.
Tenn. R. Civ. P. 56.03.
Each fact is to be set forth in a separate, numbered paragraph and supported by a specific citation to the record.
Id. When such a motion is made, any party opposing summary judgment must file a response to each fact set forth by the movant in the manner provided in Tennessee Rule 56.03. HN5[]
[W]hen a motion for summary judgment is made [and] . . . supported as provided in [Tennessee Rule 56], to survive summary judgment, the nonmoving party may not rest upon the mere allegations or denials of [its] pleading, but must respond, and by affidavits or one [*16]
of the other means provided in Tennessee Rule 56, set forth specific facts
at the summary judgment stage
showing that there is a genuine issue for trial.
Tenn. R. Civ. P. 56.06. The nonmoving party
must do more than simply show that there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The nonmoving party must demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party. HN6[] If a summary judgment motion is filed before adequate time for discovery has been provided, the nonmoving party may seek a continuance to engage in additional discovery as provided in Tennessee Rule 56.07. However, after adequate time for discovery has been provided, summary judgment should be granted if the nonmoving party
s evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the nonmoving party comes forward with at the summary judgment stage, not on hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial. . . .

Rye v. Womens Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 2015).

Defendants argue that paceline riding is an inherently risky activity as described [*17]
by the experts and participants, especially for a rider of Decedents age. Nelms argues that Decedent had his own duty to adhere to, as well. Plaintiff argues in response that no rider in a paceline assumes that the person riding in front of him suddenly and inexplicably will slow down. Our initial inquiry is whether a duty of care exists in paceline riding and what the nature of that duty is.

The case of Becksfort v. Jackson is highly instructive. In Becksfort, a woman was injured while participating in a tennis drill at a club. We discussed as follows:

In Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994), our HN7[] Supreme Court abolished implied assumption of the risk as a complete bar to recovery in a negligence action and held that cases involving implied assumption of the risk issues should be analyzed under the principles of comparative fault and the common law concept of duty. The Court stated that the reasonableness of a partys conduct in confronting a risk should be determined under the principles of comparative fault. Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have [*18]
behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk.
Id. at 905.

HN8[] Everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others. White v. Metropolitan Government of Nashville and Davidson County, 860 S.W.2d 49, 51 (Tenn. App. 1993). The term reasonable care must be given meaning in relation to the circumstances. Doe v. Linder Constr. Co., Inc. 845 S.W.2d 173, 178 (Tenn. 1992). HN9[] To establish a claim for negligence a plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) injury or loss; (4) causation in fact; (5) and proximate causation. Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn. 1994).

***

[B]y participating in the drill, Ms. Becksfort did not confront or accept the risk that another player would act or play unreasonably. The plaintiff offered proof that Ms. Jackson knew or should have known that Ms. Becksfort was not watching Jacksons ball, and was rather watching only her (Becksforts) ball. The plaintiff also offered proof that Ms. Jackson knew or should have known that the ball was traveling in the direction of the plaintiff. [*19]
Kent Shultz stated in his deposition that during the two ball drill the respective sets of players focused on the ball in play on their half of the court. Mr. Shultz also testified that the shot which Ms. Jackson hit into the eye of the plaintiff was a forehand shot with some power behind it. Ms. Jackson contended in her deposition that (apparently due to the speed at which the ball was traveling) there simply was no time to issue a warning; however, that appears to be a question of fact upon considering all the circumstances involved.

We think there is sufficient evidence to create a genuine issue of material fact as to whether Ms. Jackson acted unreasonably by failing to warn of the errant shot. Based upon this record, reasonable minds could differ as to whether Ms. Jackson acted reasonably under the circumstances. Therefore, this question should be resolved by the trier of fact.

Becksfort v. Jackson, No. 02A01-9502-CV-00027, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *2-4 (Tenn. Ct. App. April 30, 1996), no appl. perm. appeal filed.

In Becksfort, we elaborated upon the duty of care in a sports context as follows:

The reason many courts have required a plaintiff to prove reckless or intentional conduct on the part of a defendant in order to recover for injuries sustained in an athletic competition, is that [*20]
these courts have feared that an ordinary negligence standard will increase litigation of sports injuries and stifle athletic competition. See, e.g., Hoke v. Cullinan, 914 S.W.2d 335, 337, 42 12 Ky. L. Summary 33 (Ky. 1995) (A view often expressed is that such a standard promotes sound public policy by allowing redress in extraordinary circumstances without permitting fear of litigation to alter the nature of the game.); Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, 710 (Cal. 1992) (The courts have concluded that vigorous participation in sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.). We do not share these courts concerns with respect to the imposition of an ordinary negligence standard in cases of sports related injuries, because we think that the recognition that the reasonableness of a persons conduct will be measured differently on the playing field than on a public street, will sufficiently prevent the stifling of athletic competition. We also note that the reasonableness of a persons conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and [*21]
even encouraged in the boxing ring or ice hockey rink, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.

Becksfort, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *3 n. 4.

In the present case, we respectfully disagree with the apparent position of the Trial Court and Defendants that to participate in paceline riding is to assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the participants. Many years ago, our Supreme Court abolished implied assumption of the risk as a complete bar to recovery. We decline Defendants invitation to essentially resurrect implied assumption of the risk through a special carve-out exception. Inherently risky or not, a paceline rider still has a duty of care to her fellow riders. For instance, while wrecks can and do happen, a paceline rider has a duty to refrain from abruptly applying her brakes or from hitting the wheel of the rider of front of her without good reason. We conclude that each [*22]
paceline rider in the instant case had a duty to act reasonably under the circumstances.

Having concluded that the paceline riders owed a duty of care, it remains to be established in this case at the summary judgment stage whether that duty was breached and by whom. That is problematic because there are conflicting accounts as to what happened. Chiefly, it never has been established how Nelms came to collide with Longs bicycle. Nelms states that Long suddenly slowed down. Long disputes this. Nelms and Long are, therefore, at odds in their accounts. This is not a trivial dispute but rather goes to the heart of the case—whether a breach of duty occurred and, if so, by whom. This is what juries often are called on to decide in a negligence case where comparative fault is alleged. There are genuine issues of material fact as to whether Defendants acted reasonably under the circumstances, and the issue of fault allocation, if any, should be resolved by the trier of fact. We take no position on the merits of the question, only that it remains a question suitable for trial.

The Trial Court, in its order denying Plaintiffs motion to alter or amend, also stated: [B]ecause [Decedent] chose [*23]
to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries. This is a puzzling and unsupported finding. There were five participants in the paceline group at issue, and three of those were involved in the crash. If Decedent is presumed to be at least 50% responsible for his own accident simply for participating in paceline riding, then the other riders involved in the crash also must be at least 50% responsible simply by participating. The math does not add up as, naturally, one cannot exceed 100% in an allocation of fault. Finding or holding that someone who participates with others in an inherently dangerous activity must be at least 50% at fault if he is injured is, once again, an attempt to resurrect the defense of assumption of the risk. We decline to do so.

As genuine issues of material fact remain unresolved in this case, summary judgment is inappropriate. We reverse the judgment of the Trial Court and remand for further proceedings.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the [*24]
Trial Court for collection of the costs below and for further proceedings consistent with this Opinion. The costs on appeal are assessed one-half equally against the Appellees, Michael Nelms and George Long.

D. MICHAEL SWINEY, CHIEF JUDGE


Cyclists looking for more insurance sought to prove he was employed at the time, court rules he was not. Therefore, he will defend a negligent homicide claim on his own.

By bringing a party to a lawsuit with more insurance or money, many times the defendant can escape with fewer damages. This can happen by the defendant’s actions or sometimes when the plaintiff and the defendant work together to create liability for a third party.

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603 

State: New York

Plaintiff: Randall Fein, etc.,

Defendant: Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent

Plaintiff Claims: Negligence

Defendant Defenses: Was working for his employer at the time of the accident 

Holding: Not working for his employer and not covered by his employer’s Insurance

Year: 2017

Summary 

The plaintiff and/or defendant attempted to bring the defendant’s employer into the lawsuit as a way to bring more money to the settlement table. The defendant while riding a bicycle killed a pedestrian in a crosswalk in Central Park, New York.

The attempt failed because there was no indication the defendant was under the supervision and control of the employer at the time of the accident. 

Facts 

The defendant was riding his bicycle when he struck and killed a pedestrian in the crosswalk.

Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side. 

Defendant cyclists attempted to bring into the case his employer where he worked as a bicycle coach. His employer, Asphalt Green, Inc. (AGI), would have more insurance, more resources to pay off the plaintiff and possibly allow the defendant to escape damages he could never pay.

This decision was based on a motion for summary judgment filed by the Defendant/Respondent alleged employer AGI.

It cannot be determined from the decision if the employer AGI was brought in by the plaintiff or the defendant. Nor was it developed that the plaintiff and defendant had agreed to some type of reduction in damages against the defendant if the employee was found to be working for the defendant at the time, making the employer also liable.

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

Under New York law, to be working at the time the employer had to be exercising some control over the employee/defendant at the time of the accident. The court did not find any facts to support that allegation and found “there is no indication that AGI was exercising any control over Cook at the time of the accident.”

Nor was the employer separately liable for a claim of negligent hiring and retention of the defendant. To be liable under that theory the employee had to be working for the employer at the time of the accident and the employer had to have known of the employee’s propensity to ride dangerously in Central Park, where the accident happened.

There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention.

The alleged employer was dismissed from the case.

So Now What?

This was a simple way to bring a lot more money to the table for the plaintiff. It might have been done so with the defendant’s help and/or consent. By agreeing to this the defendant might have been able to negotiate with the plaintiff a reduction in the damages he might owe or be completely dismissed from the case upon settlement with the alleged employer.

Although a scary set of facts, you actually see agreements like this often in litigation as the plaintiff’s attempt to get more money than the defendant might have or ever have and the defendant willing to throw his employer under the buss to save his own jersey.

Probably, the defendant already was terminated from his job. You would not want to employ a cycling coach who had killed someone while riding a bike.

What do you think? Leave a comment. 

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Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

Randall Fein, etc., Plaintiff-Appellant, v Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent.

4478, 110902/10

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

September 26, 2017, Decided

September 26, 2017, Entered

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL: [*1] Clyde & Co., New York (Jeffrey J. Ellis of counsel), for appellant.

Rutherford & Christie, LLP, New York (Michael C. Becker of counsel), for respondent.

JUDGES: Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.

OPINION

Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 22, 2016, which granted defendant Asphalt Green, Inc.’s (AGI) motion for summary judgment, to the extent of dismissing the amended complaint as against it, unanimously affirmed, without costs.

Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side.

The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI (see Riviello v Waldron, 47 NY2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 [1979]; Weimer v Food Merchants, 284 AD2d 190, 726 N.Y.S.2d 423 [1st Dept 2001]).

Cook’s unsupported belief, as set forth in an [*2] affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action (see Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 476 N.Y.S.2d 895 [1st Dept 1984]), do not create triable issues of fact as to whether Cook was acting in the scope of employment. Unlike in Aycardi v Robinson (128 AD3d 541, 9 N.Y.S.3d 262 [1st Dept 2015]), relied upon by plaintiff, there is no indication that AGI was exercising any control over Cook at the time of the accident (see Lundberg v State of New York, 25 NY2d 467, 255 N.E.2d 177, 306 N.Y.S.2d 947 [1969]).

The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention (see White v Hampton Mgt. Co. L.L.C., 35 AD3d 243, 244, 827 N.Y.S.2d 120 [1st Dept 2006]), and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment (see Richardson v New York Univ., 202 AD2d 295, 296-297, 609 N.Y.S.2d 180 [1st Dept 1994]).

We have considered plaintiff’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017


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.


Crisis Communication

What do you do when someone gets hurt?

image

http://www.slideshare.net/JHMoss/crisis-communication-57527422

Audience:                 Colorado Bicycle Event Coalition

Location:                  REI Downtown, Denver, COlorado

Date:                        January 21, 2016

Presentation:            Crisis Communication

For additional articles on the subject see:

10 Signs of Great Risk Management                                        http://rec-law.us/sUzpHT

7 Mistakes Made by People who are called Defendant         http://rec-law.us/stli09

Crisis Response                                                                           http://rec-law.us/ul6Nrl

Reasons Why People Sue                                                         http://rec-law.us/uZ5RKR

Ten Commandments of Dealing with People in a Crisis      http://rec-law.us/KoI8Xo

Remember the law changes constantly, this presentation may be out of date. Check back at www.recreation-law.com and with your attorney to make sure the information is still valid.

What do you think? Leave a comment.

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Copyright 2016 Recreation Law (720) Edit Law

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

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#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, Crisis Communication, Crisis, Guests, Injured Guest, Lawsuit Prevention, Cycling, Bicycling, Cycling Event, Colorado Bicycle Event Coalition,

 


League of American Bicyclists announces announce 55 new and renewing Bicycle Friendly Communities

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DearJames,

We are pleased to announce 55 new and renewing Bicycle Friendly Communities (BFC).Eighteen communities received their first BFC award, seventeen at Bronze and Hennepin County, MN, at Silver. Nine communities moved up to higher award levels, and the remainder renewed at their previous level.

​”As biking has become more and more popular, more and more communities are committed to creating safer places to bike,” said Alex Doty, executive director of the League of American Bicyclists. “Winning a Bicycle Friendly Community designation shows a community’s dedication to creating safer and better places to ride your bike.”

This latest round saw strong growth in the top tiers of the program, as Madison, WI, became the 5th Platinum BFC, and four communities moved into the Gold tier: Austin, TX, San Luis Obispo and Santa Cruz, CA, and Tempe, AZ.

“What this says is that any city can be a great cycling city as long as there’s commitment from a broad range of city leaders and the population as a whole. This didn’t come about overnight, it was a decade-long effort. We had support from city leaders, the business community and the thousands of cyclists in the Madison area. The lesson we learned is that it has to be a broad-based effort, it can’t just come from the top.” — Dave Cieslewicz, executive director of the Wisconsin Bike Fed and former mayor of Madison

Explore the Bicycle Friendly Communities (and businesses and universities) in your state using our online award database. To apply or learn more about the BFC program, visit bikeleague.org/community. If you own, work at, or do business with a bicycle friendly business, the next deadline for that program is December 15. Learn how to apply.

The League thanks the Trek Bicycle Corporation, and all our members, partners, and local reviewers for their support of our work.

1439827370573-7exz59ggxob6gvi-3d8f161a6e24a2117f3179884f74970b.png?1439827372The League of American Bicyclists is leading the movement to create a Bicycle Friendly America for everyone. As leaders, our commitment is to listen and learn, define standards and share best practices to engage diverse communities and build
​a powerful, unified voice for change.
For more information or to support the League, visit www.bikeleague.org
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www.bikeleague.org

1612 K Street NW, Suite 308, Washington, D.C. 20006 202-822-1333

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