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New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim. The release stopped the claims the plaintiff suffered running in a half marathon.

The plaintiff slipped and fell on ice while trying to leave the course to tie his shoe. He sued the City of New York, NYC Department of Parks, New York Road Runners, Inc. and Road Runners Club of America for his injuries. He alleged gross negligence for having him leave the course if he had a problem where he fell on ice.

Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

Plaintiff: Jonathan Zuckerman

Defendant: The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Runners Club Of America

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: release

Holding: for the defendants

 

At the beginning of this half marathon that ran through Central Park in New York City, the plaintiff was instructed with other runners to leave the course if they had a problem. This was done so runners would not run into each other.

The plaintiff was an experienced runner who had participated in 100 events. During the race, he left the course to tie his shoe. He slipped on ice next to the course suffering this injury.

The release in this case was short; however, it was long enough to cover the important points according to the court. The release specifically mentioned “falls” as a risk of the activity and had the plaintiff agree to release claims due to negligence.

The release was signed by the plaintiff electronically. The signors had to elect to accept the terms or reject the terms. If they runner rejected the terms of the release, they could not register for the race.

Summary of the case

The court started by looking at the legal requirements in New York that affect the validity of a release.

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable were not expressly prohibited by law.

Language relieving one from liability must be unmistakable and easily understood.

Agreements to indemnify for gross negligence or willful behavior, however, are void.

The court also defined the requirements to support a claim for gross negligence in an effort to overcome a release. “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference to the rights of others.”

It is refreshing to see the court recognize the claim as one trying to evade the release as a defense. The court stated, “I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver.”

The court reviewed the release and found the risk the plaintiff undertook was specifically identified in the release, a fall. The court also found the instructions the race official gave to the participants to leave the race course were reasonable. There was no greater liability attributed to the race promoter for having runners leave the course because to fail to do so would have runners running into each other on the course.

Having looked at the facts and the release, the court found that gross negligence could not reasonably be drawn from those facts.

City of New York’s Motions

The City of New York moved to amend its complaint to include the defense of Release. The city was named in the release as an entity to be protected by the release but had not pled the defense of release. As such the court had to grant the cities motion to amend its answer so it could plead the additional defense.

In another action that is rarely done in courts, the court reviewed the law on granting motions to amend and then granted the motion. The court then said since it had already ruled that a release stopped the plaintiff’s claims against the sponsor, it would also stop the plaintiff’s claims against the city and dismissed the city from the case.

So Now What?

It is rare to see a court take the initiative to do undertake these two actions. The first to throw out the gross negligence claims and the second to throw out the negligence claims of the city without a motion for summary judgment. Courts are reluctant to take such acts or the rules of civil procedure will not allow a court to do so.

The decision is also valuable because it defines what gross negligence is in New York.

Here an electronic release that was well written stopped the plaintiff’s claims against the race promoter and the entities the release also protected.

What do you think? Leave a comment.

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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, The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. Road Runners Club Of America, Half Marathon, Running, Running Race, Race, Jogging, Runner, Gross Negligence,

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Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

[**2] Jonathan Zuckerman, Plaintiff, -against- The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Road Runners Club Of America, Defendants.

105044/2010

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

February 18, 2011, Decided

February 23, 2011, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: runner, marathon, gross negligence, affirmative defense, amend, enforceable, reply, factual issues, participating, oppose, ice, exit, nunc pro tunc, risks associated, reckless indifference, grossly negligent, collectively, spectators, humidity, website, weather, traffic, invoked, waive, heat, void, registration, disbursements, encompassed, registrant

COUNSEL: [*1] For Plaintiff: Frank Taubner, Esq., Jasne & Florio, LLP, White Plains, NY.

For defendant NYRR: Deborah Peters Jordan, Esq., Havkins, Rosenfeld et al, New York, NY.

For defendant City: Anthony Bila, ACC, Michael A. Cardozo, Corporation Counse, New York, NY.

JUDGES: Barbara Jaffe, JSC.

OPINION BY: Barbara Jaffe

OPINION

DECISION & ORDER

By notice of motion dated August 20, 2010, defendants New York Road Runners, Inc. and Road Runners Club of America (collectively, NYRR) move pursuant to CPLR 3212 for an order summarily dismissing the complaint, and defendant Road Runners Club of America, Inc. (RRCA) moves pursuant to CPLR 3211(c) for an order dismissing the complaint. Plaintiff opposes as to NYRR, and does not oppose as to RRCA. Defendants City and New York City Department of Recreation (collectively, City) move separately pursuant to CPLR 3025(c) for an order granting leave to amend their answer nunc pro tunc to add an affirmative defense, and pursuant to CPLR 3211(a)(5) and (a)(7) for an order dismissing the complaint. Plaintiff opposes City’s motion.

[**3] I. FACTS

NYRR conducts more than 100 events a year, including the Manhattan Half Marathon (Half Marathon). (Affirmation of Kenneth L. Winell, Esq., dated Aug. 20, 2010 [Winell [*2] Aff.], Exh. D). Participants in the Half Marathon register through NYRR’s website which contains the following provision:

I know that participating in NYRR events is a potentially hazardous activity. I agree not to enter and participate unless I am medically able and properly trained. I agree to abide by any decision of an event official relative to my ability to safely complete the event. I am voluntarily entering and assume all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course, all such risks being known and appreciated by me. I grant to the Medical Director of this event and his designee access to my medical records and physicians, as well as other information, relating to medical care that may be administered to me as a result of my participation in this event. Having read this Waiver and knowing these facts, and in consideration of your acceptance of this application, I, for myself and anyone entitled to act of my behalf, waive and release New York Road Runners Club, Inc., Road Runners Club [*3] of America, USA Track & Field, the City of New York and its agencies and departments, the Metropolitan Athletics Congress, and all sponsors, and their representatives and successors, from present and future claims and liabilities of any kind, known or unknown, arising out of my participation in this event or related activities, even though such claim or liability may arise out of negligence or fault on the part of the foregoing persons or entities. I grant permission to the foregoing persons and entities to use or authorize others to use any photographs, motions pictures, recordings, or any other record of my participation in this event or related activities for any legitimate purpose without remuneration.

(Id., Exhs. C.F. [emphases added]). The registrant must then either select “I accept and agree to the above waiver,” or “I do not accept and do not agree to the above waiver.” (Id.) If the registrant selects the latter, he cannot register. (Id., Exh. C).

Plaintiff, a member of NYRR, is an experienced runner, having participated in over 100 NYRR events. (Affirmation of Frank Taubner, Esq., dated Oct. 11, 2010 [Taubner Aff.]). He registered for the 2009 Half Marathon online approximately [*4] one week earlier, and recalls seeing [**4] a waiver as part of the registration procedure. (Id.).

At approximately 8:00 a.m. on January 25, 2009, plaintiff arrived at the starting area of the Half Marathon in Central Park. (Id.). Snow banks flanked the course’s pathways. (Id.). An NYRR official orally instructed the participants that if they had to stop for any reason, they were to exit the course and proceed to the shoulder of the roadway so as not to block other participants. (Id.). While running, plaintiffs shoe became untied and seeing no designated exit areas, he stepped off the path as instructed and proceeded to what he believed to be a patch of dirt. (Id.). There, he slipped on ice that he had not seen, and fell backward, seriously injuring himself. (Id.).

II. NYRR’S MOTION

A. Contentions

NYRR contends that it is entitled to summary dismissal as plaintiff executed a valid and enforceable waiver of liability, and because it did not organize, supervise or control the half marathon. (Memorandum of Law in Support of Defendants’ Motion to Dismiss, dated Aug. 2010 [NYRR Mem.]). In support, it annexes the affidavits of three of its employees, (id., Exhs. C, D, E), a copy of the waiver (id, [*5] Exh. F), and proof of plaintiffs registration (id., Exh. F).

Plaintiff argues that in light of defendants’ gross negligence and his compliance with the instructions given at the commencement of the half marathon that he exit the course if he needed to stop, the waiver is unenforceable. He also denies having assumed the risk of slipping on ice when exiting the course. (Taubner Aff.).

In reply, NYRR asserts that plaintiff’s injury is encompassed by the waiver and that plaintiff has failed to establish that NYRR’s conduct rises to the level of gross negligence. (Reply [**5] Affirmation of Deborah Peters Jordan, Esq., dated Nov. 18, 2010).

B. Analysis

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law. (Gross v Sweet, 49 NY2d 102, 105, 400 N.E.2d 306, 424 N.Y.S.2d 365 [1979]). Language relieving one from liability must be unmistakable and easily understood. (Id. at 107). Agreements to indemnify for gross negligence or willful behavior, however, are void. (Id. at 106). “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference [*6] to the rights of others.” (Sommer v Fed. Signal Corp., 79 NY2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 [1992]; Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 77 A.D.3d 431, 433, 908 N.Y.S.2d 654 [1st Dept 2010]).

As plaintiff does not deny that he agreed to the waiver or that it is generally enforceable and not void as a matter of law or public policy, I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver. That the waiver references the “conditions of the course” does not remove plaintiff’s accident from its scope as the waiver extends to “all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course.” The breadth of the provision permits the inference that plaintiff was aware that by executing the waiver, he assumed the risks of running through Central Park in the winter, where the presence of ice is reasonably anticipated, which risks are reasonably deemed part of the activity, and not just of the course. (See Bufano v Nat. Inline Roller Hockey Assn., 272 A.D.2d 359, 707 N.Y.S.2d 223 [**6] [2d Dept 2000] [*7] [plaintiff assumed risk of injury during fight while playing inline roller hockey]), Nothing in the provision precludes its application to accidents incurred by a participant who momentarily steps off the course.

And, although plaintiff acted in compliance with defendants’ instruction to leave the race course if he needed to stop, such an instruction constitutes a sensible means of protecting participants from colliding with one another, and neither invites nor would naturally lead to an accident sufficient to constitute reckless indifference. Consequently, an inference of gross negligence is not reasonably drawn therefrom. (See Lemoine v Cornell Univ., 2 AD3d 1017, 769 N.Y.S.2d 313 [3d Dept 2003], lv denied 2 N.Y.3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2005] [plaintiff fell from wall after rock-climbing instructor told her where to place her hands and feet; waiver of liability enforced; not gross negligence]). And, assuming that NYRR had a duty to keep the park free of slippery substances, the failure to do so constitutes ordinary negligence at best.

Given this result, I need not address RRCA’s alternative argument that it did not organize, supervise, or control the half marathon.

III. CITY’S MOTION

A. Contentions

City argues that it should [*8] be granted leave to amend its answer to add an affirmative defense that the action is barred by plaintiffs execution of a written release. It observes that leave is freely granted, that plaintiff will no suffer no prejudice, and that, although this motion was served after joinder of issue, it is procedurally proper as City moves pursuant to CPLR 3211(a)(7) as well as (a)(5). (Affirmation of Anthony Bila, ACC, dated Sept. 29, 2010).

Plaintiff asserts that City is not entitled to dismissal given the factual issues as to City’s [**7] gross negligence and whether plaintiff’s accident is encompassed by the waiver, and that the motion to amend should be denied because the affirmative defense is meritless and prejudicial. (Taubner Aff.).

In reply, City maintains that as it moves only pursuant to CPLR 3211, the existence of factual issues is immaterial. It contends that the amendment is meritorious and will not prejudice plaintiff, and that plaintiffs accident falls squarely within the scope of the waiver and that there is no evidence of gross negligence. (Reply Affirmation of Anthony Bila, ACC, dated Nov. 18, 2010).

B. Analysis

Although objections pursuant to CPLR 3211(a)(5) are waived if not invoked [*9] in the movant’s answer (CPLR 3211 [e]), a motion to amend an answer may be granted in order that the affirmative defense be addressed on the merits. (Siegel, NY Prac § 274, at 435 [3d ed]; Marks v Macchiarola, 221 AD2d 217, 634 N.Y.S.2d 56 [1st Dept 1995]). Thus, and absent any discernible prejudice given plaintiffs having addressed the substance of the motion above (II. A.), leave is granted. (Cf Young v GSL Enter., Inc., 170 AD2d 401, 566 N.Y.S.2d 618 [1st Dept 1991] [Supreme Court properly addressed merits of proposed affirmative defense in motion to amend]; Scheff v St. John’s Episcopal Hosp., 115 AD2d 532, 534, 496 N.Y.S.2d 58 [2d Dept 1985] [same]).

Although plaintiff executed the waiver on NYRR’s website, City was expressly included therein. (See Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008], lv denied 11 N.Y.3d 704, 894 N.E.2d 1198, 864 N.Y.S.2d 807 [upholding waiver against NYRR and City]; cf Tedesco v Triborough Bridge and Tunnel Auth, 250 AD2d 758, 673 N.Y.S.2d 181 [2d Dept 1998] [bicycle tour waiver included party not specifically named in release]). Moreover, the waiver of liability is a release within the meaning [**8] of CPLR 3211(a)(5). (See Brookner, 51 AD3d 841, 858 N.Y.S.2d 348).

Having already determined that the waiver is enforceable as against plaintiff, and as NYRR’s [*10] conduct was not grossly negligent, the same result is reached as to City.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that the motion for summary judgment by New York Road Runners, Inc. and Road Runners Club of America is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; it is further

ORDERED, that the motion by City of New York and New York City Department of Parks and Recreation for leave to serve an amended answer is granted, and the annexed answer is deemed timely served, nunc pro tunc; and it is further

ORDERED, that the motion for dismissal as against City of New York and New York City Department of Parks and Recreation is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs.

This constitutes the decision and order of the court.

/s/ Barbara Jaffe

Barbara Jaffe, JSC

DATED: February 18, 2011

New York, New York

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Training Peaks is leading the pack in creating a website that works for training

Don’t pay to just record what you have done, that you can do on a piece of paper

Until recently, all software and web based performance programs just recorded what you did. Although it supplies some ego gratification, it does nothing to provide information on how to get better. To do that you need to compare days, weeks and sometimes months of Training Peaks 1training.

Normally that required downloading the info to a spreadsheet and writing your own formula’s to figure out what you had been doing and needed to do. Most coaches worked that way. Once you downloaded your results from your bike or running computer (or phone now days) you sent it in a spreadsheet to your coach.

Training Peaks has been working that direction and announced the next stage in that evolution. Once you upload information to the Training Training Peaks 3Peaks site it will compare your heart rate and power readings to previous uploads and let you know if your training is working.

This is still not what is needed to effectively train; however there is at least one program that understands that graphics online do nothing to help you get better. At present, a spreadsheet can do more to increase your performance than any software or web program.

See Coming Soon: Threshold Improvement Notifications and More

What do you think? Leave a comment.Training Peaks 2

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Saffro v. Elite Racing, Inc., 98 Cal. App. 4th 173; 119 Cal. Rptr. 2d 497; 2002 Cal. App. LEXIS 4076; 2002 Cal. Daily Op. Service 3941; 2002 Daily Journal DAR 5009

Richard Saffro, Plaintiff and Appellant, v. Elite Racing, Inc., Defendant and Respondent.

No. D037591.

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE

98 Cal. App. 4th 173; 119 Cal. Rptr. 2d 497; 2002 Cal. App. LEXIS 4076; 2002 Cal. Daily Op. Service 3941; 2002 Daily Journal DAR 5009

May 7, 2002, Decided

NOTICE: [***1] CERTIFIED FOR PUBLICATION

SUBSEQUENT HISTORY: Rehearing Denied May 31, 2002.

Review Denied July 31, 2002, Reported at: 2002 Cal. LEXIS 5268.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of San Diego County. Super. Ct. No. 731713. Linda B. Quinn, Judge.

DISPOSITION: Reversed.

SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY A marathon runner brought an action for negligence and negligent supervision against the organizers of a particular 26-mile race. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte replacement drinks during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner who testified that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendants wrote a letter to participants, in which they admitted that their provision of “race fundamentals” had been inadequate. The trial court granted defendant’s summary judgment on the ground that plaintiff’s action was barred by the doctrine of primary assumption of the risk. (Superior Court of San Diego County, No. 731713, Linda B. Quinn, Judge.)

A marathon runner brought an action for negligence and negligent supervision against the organizers of a particular 26-mile race. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte replacement drinks during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner who testified that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendants wrote a letter to participants, in which they admitted that their provision of “race fundamentals” had been inadequate. The trial court granted defendant’s summary judgment on the ground that plaintiff’s action was barred by the doctrine of primary assumption of the risk. (Superior Court of San Diego County, No. 731713, Linda B. Quinn, Judge.)

The Court of Appeal reversed. The court held that plaintiff’s action was not barred by the doctrine of primary assumption of the risk. The organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to minimize the risks without altering the nature of the sport, including the provision of sufficient water and electrolyte replacement drinks. The court further held that the circumstantial evidence presented by plaintiff created an issue of fact regarding causation. (Opinion by McIntyre, Acting P. J., with O’Rourke and McConnell, JJ., concurring.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1)Negligence § 122–Actions–Appeal–Scope of Review–Questions of Law–Assumption of Risk. –The issue of assumption of risk involves the existence and scope of a defendant’s duty of care, which is a legal question that depends on the nature of the activity involved and the parties’ relationship to that activity. An appellate court reviews de novo a trial court’s determination on the issue of assumption of risk, and all doubts as to the propriety of granting a motion for summary judgment must be resolved in favor of the party opposing the motion.

(2)Negligence § 37–Exercise of Care by Plaintiff–Primary and Secondary Assumption of Risk. –The doctrine of assumption of risk in negligence cases embodies two components: (1) primary assumption of risk–where the defendant owes no duty to the plaintiff to protect him or her from the particular risk, and (2) secondary assumption of risk–where the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters a risk created by the breach of that duty. Primary assumption of risk operates as a complete bar to a plaintiff’s negligence cause of action, while the doctrine of secondary assumption of risks is part of the comparative fault scheme, where the trier of fact considers the relative responsibility of the parties in apportioning the loss.

(3)Negligence § 37–Exercise of Care by Plaintiff–Primary Assumption of Risk–Sports Activities–Legal Duty of Defendant–Role in Sport. –Before concluding that a sports-related negligence case comes within the doctrine of primary assumption of risk, a court must not only examine the nature of the sport, but also the defendant’s role in, or relationship to, the sport. The scope of the legal duty owed by the defendant will frequently depend on this role or relationship. The risks inherent in the sport are defined not only by the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.

(4a)(4b)Negligence § 37.2–Exercise of Care by Plaintiff–Primary Assumption of Risk–Sports Activities–Legal Duty of Organizer of Marathon Race–Provision of Fluids to Runners. –The trial court erred in finding that an action for negligence and negligent supervision brought against the organizers of a particular 26-mile race by a marathon runner was barred by the doctrine of primary assumption of risk. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendant wrote a letter to participants, in which it admitted that its provision of “race fundamentals” had been inadequate. The organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to minimize the risks without altering the nature of the sport. Further, the circumstantial evidence presented by plaintiff created an issue of fact regarding causation.

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

(5)Negligence § 72–Actions–Burden of Proof–Proximate Causation–Shifting Burden to Defendant–When Negligence Renders Plaintiff Incapable of Proving Causation. –When there is a substantial probability that a defendant’s negligence was a cause of an injury and when this negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant to prove its negligence was not a cause of the injury. In these circumstances, as a matter of public policy, the burden is more appropriately borne by the party with greater access to information.

COUNSEL: Higgs, Fletcher & Mack and John Morris for Plaintiff and Appellant.

Royce, Grimm, Vranjes, McCormick & Graham and A. Carl Yaeckel for Defendant and Respondent.

JUDGES: Opinion by McIntyre, Acting P. J., with O’Rourke and McConnell, JJ., concurring.

OPINION BY: McINTYRE

OPINION

[*175] [**498] McINTYRE, Acting P. J.

In this case we conclude that [HN1] the organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to “minimize the risks without altering the nature of the sport”–which includes providing sufficient water and electrolyte replacement drinks as represented in the informational materials provided to the participants. (See Knight v. Jewett (1992) 3 Cal. 4th 296, 317 [11 Cal. Rptr. 2d 2, 834 P.2d 696].)

Richard Saffro appeals from [***2] a summary judgment entered against him on his complaint against Elite Racing, Inc. (Elite) for negligence and negligent [*176] supervision in connection with the 1998 “Suzuki Rock ‘N’ Roll Marathon” in San Diego. Saffro contends the judgment should be reversed because the trial court erred in (1) ruling his suit was barred by the doctrine of primary assumption of risk; (2) excluding the declarations of three race participants; and (3) denying his motion [**499] for reconsideration. We agree with Saffro’s first contention and find there are issues of material fact on the questions of breach of duty and causation. Thus, we reverse the judgment. This renders Saffro’s second and third contentions moot.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are derived from the evidence admitted by the trial court. On June 21, 1998, Saffro ran in the marathon organized and conducted by Elite. That same day, after completing the race, Saffro boarded a plane to return home to Chicago. Between 60 and 90 minutes into the flight, Saffro suffered a grand mal seizure, necessitating an emergency landing in St. Louis. He was hospitalized in St. Louis and diagnosed with severe hyponatremia–which [***3] occurs as a result of decreased sodium concentration in the blood, as well as pulmonary edema and cerebral edema resulting from the hyponatremia. Saffro’s condition was critical; he was kept on a ventilator for four days and hospitalized for a longer period. His injuries caused him to suffer neurological deficit; indeed, Saffro’s only memory of running the marathon was a “vague recollection of hearing some music, some bands . . . .” Saffro submitted the declarations of medical experts who opined that his hyponatremia was caused by the inability to consume adequate amounts of water and fluids containing electrolytes (such as Gatorade and Race Day) during the marathon.

Prior to the marathon, Elite sent written materials to the participants stating there would be 23 water and refreshment stations located throughout the course, from the 2-mile mark to the 25.1-mile mark. Elite represented that all stations would include water and 11 stations would also distribute Race Day, an electrolyte fluid. Saffro presented evidence that it is customary in the field and runners expect, on the basis of their entry fee, to be “support[ed] along the course” and provided with water and electrolyte [***4] fluids at regular intervals. In addition, he testified that in the other two marathons he had run, it was his practice to stop at every refreshment stand and drink the water and electrolyte fluids provided.

Elite also informed the runners in writing that the race would start at 7:00 a.m. and that it anticipated all runners would reach the starting line in less than five minutes. About 6:15 a.m. on the day of the marathon, Saffro drank 12 to 16 ounces of water and then was directed to his “corral” to await the [*177] scheduled 7:00 a.m. start of the race with other runners of similar ability. One thousand participants were assigned to each corral based on their projected race times, with the fastest runners stationed closest to the starting line. No one without an official marathon number was allowed to enter the corrals. The race did not start until about 7:45 a.m., however. During the delay, the cloud cover burned off and it became increasingly warm, yet the runners could not leave the corrals to get more water or other fluids. Several announcements were made during the delay that the race would begin in “only five or ten more minutes”–which was not the case.

According to [***5] Elite’s records, Saffro completed the marathon in 4 hours, 17 minutes and 32 seconds. Another runner, Kelley Magill, finished the race in approximately 4 hours and 45 minutes. Magill testified that at the first refreshment station at the 2-mile mark, “there was nothing. There were no volunteers, no cups, no water. Nothing.” At the next station, there was only a big trash can filled with water–no cups and no volunteers. Magill was hoping to get some water there, but “there were so many people crowded around [the [**500] trash can], pushing and yelling” that she kept on running. At the third refreshment station at the 4.1-mile mark–the first station at which Race Day was supposed to be available, there was a volunteer with a jug of water and some cups, but they had run out of Race Day. Water was set out in cups on tables at the 20 remaining stations, but there was no Race Day. Magill looked for and asked for Race Day at every refreshment station along the course, but was told each time that they had “run out of it.” She kept running in the race because she thought “there had to be some at the next [station].”

In a postrace letter to the participants regarding the marathon, [***6] Elite stated:

“[W]e know that in order to take our place as one of the world’s great marathons the ‘race fundamentals’–as well as the bells and whistles, must be superb.

“Despite our efforts, we know that too many aspects of the event were not perfect, and we take full responsibility for any and all of those imperfections. We promise to correct them all next year. The race will start on time . . . and you’ll be able to drown at our water stations.”

Saffro filed his original complaint against Elite for negligence and negligent supervision on June 16, 1999, and on April 3, 2000, he filed an amended complaint stating the same causes of action. Elite filed a motion for summary judgment on May 11, 2000, on the ground that Saffro’s causes of action were barred by the doctrine of primary assumption of risk. The trial [*178] court granted the motion, ruling that hyponatremia is an inherent risk of running a marathon and thus, Saffro’s claims were barred by the primary assumption of risk doctrine. The court also concluded “there is no evidence that plaintiff attempted to obtain the sport drinks or water during the race at any of the water and refreshment stations or that he was [***7] prohibited from doing so.”

DISCUSSION

(1) [HN2] The issue of assumption of risk involves the existence and scope of a defendant’s duty of care, which is a legal question that depends on the nature of the activity involved and the parties’ relationship to that activity. ( Knight v. Jewett, supra, 3 Cal. 4th at p. 313.) [HN3] We review de novo the trial court’s determination on the issue of assumption of risk, and all doubts as to the propriety of granting a motion for summary judgment must be resolved in favor of the party opposing the motion. ( Morgan v. Fuji Country USA, Inc. (1995) 34 Cal. App. 4th 127, 131 [40 Cal. Rptr. 2d 249]; see also Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal. 3d 171, 183 [203 Cal. Rptr. 626, 681 P.2d 893].)

(2) [HN4] The doctrine of assumption of risk in negligence cases embodies two components: (1) primary assumption of risk–where the defendant owes no duty to the plaintiff to protect him or her from the particular risk, and (2) secondary assumption of risk–where the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters a risk created by the breach of that duty. ( Knight v. Jewett, supra, 3 Cal. 4th at p. 308.) [***8] Primary assumption of risk operates as a complete bar to the plaintiff’s cause of action, while the doctrine of secondary assumption of risks is part of the comparative fault scheme, where the trier of fact considers the relative responsibility of the parties in apportioning the loss. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 132.)

[**501] (3) [HN5] Before concluding that a case comes within the doctrine of primary assumption of risk, a court must not only examine the nature of the sport, but also the ” ‘defendant’s role in, or relationship to, the sport.’ ” ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 133, quoting Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Indeed, the scope of the legal duty owed by the defendant will frequently depend on such role or relationship. ( Knight v. Jewett, supra, 3 Cal. 4th at pp. 317-318.) The Knight court noted that many courts, in analyzing the duty of the owner of a sports facility or ski resort, had defined “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the [***9] sponsoring business entity reasonably should be obligated to take in order to minimize the risks [*179] without altering the nature of the sport.” ( Id. at p. 317, italics added.) The court concluded “that in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.” ( Id. at p. 318.)

Following Knight, we held in Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at page 134, that despite the fact that being struck by an errant ball is an inherent risk in the sport of golf, the owner of a golf course owes a duty to golfers “to provide a reasonably safe golf course” which requires it ” ‘to minimize the risks without altering the nature of the sport. [Citations.]’ ” (Ibid., quoting Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) We noted that if the defendant were the golfer who had hit the errant ball, the plaintiff’s negligence action would be barred by the primary assumption of risk doctrine, but that the defendant owner of the golf course had an obligation to design [***10] a course that would minimize the risks that players would be hit by golf balls and affirmatively provide protection for players from being hit in the area of the course where the greatest danger existed. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134, citing Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Therefore, we concluded the case was one involving secondary assumption of risk and that the trial court erred in granting summary judgment based on the doctrine of primary assumption of risk. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at pp. 134-135.)

(4a) Similarly, here we hold [HN6] a race organizer that stages a marathon has a duty to organize and conduct a reasonably safe event, which requires it to “minimize the risks without altering the nature of the sport.” ( Knight v. Jewett, supra, 3 Cal. 4th at p. 317; Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134.) This duty includes the obligation to minimize the risks of dehydration and hyponatremia by providing adequate water and electrolyte fluids along the 26-mile course–particularly where the [***11] race organizer represents to the participants that these will be available at specific locations throughout the race. (See Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134; see also Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Such steps are reasonable and do not alter the nature of the sport. Accordingly, we hold this is a case involving secondary assumption of risk, and therefore, the trial court erred in ruling Saffro’s causes of action [**502] were barred by the doctrine of primary assumption of risk.

Moreover, we find that Saffro presented sufficient evidence to create an issue of fact as to whether Elite breached its duty to provide adequate water and fluids throughout the race. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at pp. 134-135.) Magill, who finished the race within 30 [*180] minutes of Saffro, testified there was no water at the first station, only a trash can of water at the second station, and a jug of water at the third, and that Race Day was not available at any of the 23 stations. As Magill indicated in her deposition, when she was running the marathon, she did [***12] not know Race Day would not be available at any of the stations; rather, when she found she could not get Race Day at one station, she kept thinking it had to be available at the next. Moreover, Saffro suffered a grand mal seizure within hours of the race that his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. Elite also alluded to problems in providing adequate “race fundamentals” in a letter to participants following the race, and stated “[next year] you’ll be able to drown at our water stations.”

In addition, to the extent the trial court’s statement, “there is no evidence that plaintiff attempted to obtain the sport drinks or water during the race at any of the water and refreshment stations,” suggests a failure of proof on the issue of causation, we disagree. Saffro testified that his practice in running marathons is to stop at all the refreshment stands and drink the water and electrolyte fluids provided, and there is an issue of fact as to whether Elite made these liquids adequately available to him and other runners of similar ability and speed. Saffro’s medical [***13] experts also declared his hyponatremia was caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. Moreover, it strains reason to conclude that Saffro or any runner in a major marathon would not stop or attempt to stop, at all, for water and fluids that are represented to be available throughout the course. Thus, the circumstantial evidence presented creates an issue of fact regarding causation, even though Saffro is unable to remember the details in running the race. (See KOVR-TV, Inc. v. Superior Court (1995) 31 Cal. App. 4th 1023, 1027-1028 [37 Cal. Rptr. 2d 431].)

Further, given Saffro’s resulting neurological injuries which have impaired his memory, and the evidence of inadequate provision of water and electrolyte fluids, this may be a case in which the burden of proof regarding causation would be shifted to Elite as a matter of public policy. (See Haft v. Lone Palm Hotel (1970) 3 Cal. 3d 756, 762 [91 Cal. Rptr. 745, 478 P.2d 465].) In Haft, the decedents were found dead in the bottom of a hotel pool; no one had witnessed them drown, but the hotel owners had failed to comply with several [***14] safety regulations regarding pools. ( Id. at pp. 762-763.) (5) The court held that [HN7] where there is a substantial probability that the defendant’s negligence was a cause of the injury and when such negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant [*181] to prove its negligence was not a cause of the injury, i.e., in those circumstances, the burden was more appropriately borne by the party with greater access to information. ( Id. at p. 774, fn. 19.) (4b) We do not hold that the burden should be shifted in this case, only that the circumstances of [**503] this case raise this issue, and we leave this matter for the trial court to address, depending on what, if any, additional evidence is adduced.

Accordingly, because Saffro’s causes of action are not barred by the doctrine of primary assumption of risk, and there are issues of fact on the issues of negligence and causation, the trial court erred in entering summary judgment against him.

DISPOSITION

The judgment is reversed. Costs are awarded to Saffro.

O’Rourke, J., and McConnell, [***15] J., concurred.

A petition for a rehearing was denied May 31, 2002, and respondent’s petition for review by the Supreme Court was denied July 31, 2002. Brown, J., did not participate therein.