November 22, 2007

Assumption of Risk Doctrine May Pose Liability Concerns For Operators of BMX Parks

Article reprinted with permission from the October 1, 1995 edition, page 7
Bicycle Retailer and Industry News

A Legal Viewpoint

By Steven W. Hansen

In October 1993, I wrote about some changes occurring in the “assumption of risk" doctrine, a doctrine revived in many states over the last several years, including California. I wrote that product manufacturers could not benefit from the change because of the uniqueness of product liability law and the public policy behind it.

Two California Supreme court decisions, one involving co-participants in a touch football game, and the other involving co-participants in a waterskiing accident, were being hailed by manufacturers and suppliers as the beginning of the end for personal injury lawsuits arising out of recreational sports.

Since then a flurry of appellate decisions have been decided-with mixed results. The upshot is that whether the participant assumed a risk or not, it is usually an issue for juries to resolve in costly, unpredictable trials, or by judges, who can decide the issue before trial based upon declarations, depositions and exhibits.

Adding Undue Risk. While sports facility operators generally have no legal duty to eliminate or protect participants against risks inherent in a sport, it is well established that they have a duty to use due care not to increase risks over and above those inherent in the sport. For example, moguls, which naturally build-up on the mountains at ski resorts, illustrate a risk inherent in skiing and has been successfully cited by ski resort operators, at least in those cases where there was no evidence that the ski area had increased risks.

But the operator of Kearney Motto Park was not so fortunate. Brandon Branco, a 17-year-old, experienced BMX rider was rendered a quadriplegic when he crashed and struck a wall after going over the "Million Dollar Doubles," two bumps joined together in a saddle-like configuration.

He was injured while competing and had received no instructions from park employees. He testified that he intended to "roll" the bumps, but instead found himself doing a “wheelie," causing him to lose control. He had rolled over the jump before without incident, but had never "wheelied" it. Branco saw others doing wheelies, but never saw them having difficulty.

Million Dollar Double. Branco's expert witness said in a depositionthat, unlike other jumps he had seen, the "Million Dollar Double" was too steep. It put riders at risk because a rider's center of gravity tends to lift when approaching the jump. He also cited the distance between the two jumps, which forced riders to travel at a high rate of speed to make the second jump.

These factors tended to put riders at risk or at the end of their envelope of ability. The park's experts, however, testified that the track complied with guidelines that all jumps could be ridden over or jumped by making one or both wheels airborne and that the jumps could be expected at any BMX track.

The park's attorney sought to have the case dismissed. It was dismissed but then the dismissal was reversed on appeal. The appellate court found that the issue of "assumption of risk" doctrine had to go to a jury. The court noted that the lower court was correct in holding that Branco's subjective knowledge of the risk was irrelevant to the issue of the park owner's duty. Still, the court ruled that whether or not the park's operator increased the risk above those inherent to BMX racing was a question for a jury.

Park Operators Be Careful. The court cited a number of decisions involving horseback riding and golfing, but was quick to point out that decisions involving ski resorts were not applicable as the moguls occurred naturally as opposed to man-made hills. In contrast, the court held that park owners owe a duty to BMX riders not to create jumps, which by their design, create an extreme risk of injury. This decision does not bode well for the blossoming BMX market and park operators should take note. The court did not decide the “failure to warn" issues raised in the Branco case or whether the "assumption of risk" doctrine should be applied to minors.

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