Defendant ARB Cyclery, LLC?s Motion for an order granting summary judgment in their favor and against Plaintiffs Andrew Bailey and Jerralee Bailey is DENIED.? There is a material issue of triable fact regarding the?Plaintiff?s cause of?action for negligence?and Plaintiff Jerralee Bailey?s cause of action for loss of consortium.
Authorities:
In determining if a risk is inherent to the sport, a court must evaluate (1) the fundamental nature of the sport, and (2) the defendant?s relationship to the sport, in order to determine if the defendant should be relieved of his or her general duty of care. As a matter of policy, a duty should not be imposed where doing so ?would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.? Rosencrans y. Dover Images. Ltd. (2011) 192Cal.App.4th 1072, 1082-1083.
Experts may not give opinions on matters which are essentially within the province of the court to decide.? Accordingly, the legal question of duty, and specifically the question of whether a particular risk is an inherent part of a sport, is necessarily reached from the common knowledge of judges, and not the opinions of experts.??Rosencrans v. Dover Images. Ltd. (2011) 192 Cal.App.4th 1072,1083.? The question of whether a defendant increased the risks inherent in an activity should be left to the jury. Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal. App. 4th 1053, 1063. This question ?is not a matter of further defining duty, which would be a question of law for the court. Rather, it requires application of the governing standard of care (the duty not to increase the [inherent risks] ) to the facts of this particular case–the traditional role of the trier of fact.? Id.
A release does not waive liability for conduct that is grossly negligent (willful negligence or recklessness) conduct of a defendant. Eriksson v. Nunnink (2015) 233 Cal. App. 4th 708. In contrast to ?ordinary negligence,? which consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm, ?gross negligence,? describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he knows or should know it is highly probable that harm will result. Santa Barbara v. Superior Court (2007) 41 Cal.4th 747. 764. In order to allege a claim for ?gross negligence,? plaintiff must allege conduct rising to the level of ?either a want of even scant care, or an extreme departure from the ordinary standard of conduct.? Id.
Application:
Did ARB Cyclery Owe And/Or Breach A Duty Of Care To Plaintiff?
The court finds that there is a material issue of triable fact regarding whether ARB Cyclery owed or breached a duty of care to Plaintiff.? ABS argues that it did not have any involvement in the planning or organizing of the Ride 2 Recovery.? The plaintiff has presented evidence that ABS was involved in both. The plaintiff has presented evidence which supports a finding that the fundraiser ride was organized by defendant USA Cycling and that defendant ARB Cyclery, a local bike shop partnered to host and run the event. FACTS 15 and 16; Exhibits 1 and 2.? The plaintiff has presented evidence that Ride 2 Recovery requested that ARB come up with a route for the riders and relied on ARB?s selection and utilization of the route. FACTS 25 – 27; Exhibit 3.
Doctrine Of Primary Assumption Of Risk
The court finds that there is a material issue of triable fact regarding whether the doctrine of primary assumption of risk bars the plaintiff?s negligence cause of action.? There is a material issue of triable fact regarding whether the Plaintiff voluntarily engaged in a recreational activity (cycling) that involved the inherent risk of injury which he alleges in this case.? The plaintiff has presented evidence that the subject Ride 2 Recovery, during which he was injured, was a fundraiser bike ride for disabled veterans.? The plaintiff has presented evidence that the riders were not competitive cyclists; in fact, many of the riders, like plaintiff, were elderly and disabled individuals.? The plaintiff has presented evidence that the subject bike ride, Ride 2 Recovery, was a fundraiser intended to raise money for disabled veterans and specially marketed to disabled and amputee riders.? FACTS 15 and 18; Exhibit 1, 4, and 13.
Unreasonably Increased The Risks
There plaintiff has presented evidence which creates a material issue of fact regarding whether ARB Cyclery unreasonably increased the risks to Plaintiff over and above those inherent in the subject activity.? The plaintiff has presented evidence that neither the organizer nor ARB had any route safety training and that ARB had never helped organize a ride with over 60 participants. FACTS 19 – 24; Exhibit 3 and 13.? The plaintiff has presented evidence that ARB advised Ride 2 Recovery that the ?route was safe? without?ascertaining the width of the path or having any discussions about safety issues with Ride 2 Recovery before the ride. FACTS 26, 28 and 32; Exhibits 3 and 13.? As such, there is material issue of triable fact regarding whether ARB was at least jointly responsible for the?course.
The plaintiff has presented evidence that the route selected by ARB was dangerous in that it had a dangerous blind curve underpass that narrows from 19 feet to 8 feet 4 inches five miles into the course without a center divider line.?? FACTS 29-31 and 33; Exhibit 4 and 7. The plaintiff has presented evidence that the blind curve underpass was considered so dangerous to local riders that they tried to re-route themselves around it because riders could not see oncoming traffic coming around the corner. FACTS?34?- 36; Exhibit 3 and 4.
The plaintiff has presented evidence that most recreational bike rides, like this one, are on a closed course with warnings to riders to slow down or avoid oncoming traffic at blind curves. FACT 37; Exhibit 3 and 4. The plaintiff has presented evidence that ARB chose to operate the ride with the route open to the pubic without warning or restricting the participants and non-participant riders from coming into contact with one another.? FACTS 39 – 41; Exhibit 3 and 13.? The plaintiff has presented evidence that ARB operated the ride without warnings regarding the blind curve. FACT 41; Exhibit 3 and 13.
Doctrine Of Express Assumption Of Risk
There is a material issue of triable fact regarding whether the plaintiff?s cause of action for negligence against ARB Cyclery is barred based upon the doctrine of express assumption of risk based upon him signing the defendants? written waiver and release of liability based upon the defendant?s gross negligence, recklessness and intentional misconduct.
County Ordinance Code 2-5-25 mandates that organizers obtain a special event permit before holding such an event on County property. Plaintiff?s Request for Judicial Notice. The plaintiff has presented evidence that Ride 2 Recovery consulted ARB and decided to operate the ride despite the County of Orange?s denial of their permit request because there was another event already scheduled on the trail and the County could not handle more than one trail event per day. FACTS 48-51; Exhibit 8 and 9.
The plaintiff has presented evidence that according to their expert witness John Howard, the route selected by ARB ?was extremely dangerous and greatly inappropriate for this type of event? and ?should have been ?closed? to riders approaching from the opposite direction.? FACT 42; Howard Dec. ? 8 and 10. The plaintiff has presented evidence that the according to Mr. Howard, the width reduction of the path leading up to and through the underpass ?makes a head-on collision clearly foreseeable? ?in the context of a group ride.? FACT 43; Howard Dec. ? 21.?? The plaintiff has presented evidence that Mr Howard is of the opinion that the event fell below the standard of care in the industry for a recreational group bike ride that involved disabled riders and that ?the convergence of all the factors in this route was bound to result in a serious injury accident.? FACTS 44 and 45; Howard Dec. ?? 23 and 26.
ARB CYCLERY’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION?FOR SUMMARY JUDGMENT:
The Defendant ARB Cyclery?s request for judicial notice of the Plaintiffs, Andrew Bailey and Jerralee Bailey’s Complaint filed November 30, 2017 is GRANTED.
PLAINTIFFS ANDREW AND JERRALEE BAILEY?S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO MOTION?FOR SUMMARY JUDGMENT:
The Plaintiffs Andrew Bailey and Jerralee Bailey?s request for judicial notice of Orange County Ordinance Code 2-5-25 is GRANTED.
Plaintiff to give notice.