Showing posts with label Premises Liability Cases. Show all posts
Showing posts with label Premises Liability Cases. Show all posts

November 24, 2007

Prokop v. City of Los Angeles

Prokop v. City of Los Angeles (2007) 59 Cal.Rptr.3d 355 | 150 Cal.App.4th 1332 [No. B184025. Second Dist., Div. Eight. May. 21, 2007.] DAVID PROKOP, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent. (Superior Court of Los Angeles County, No. BC 305404, Rolf M. Treu, Judge.) (Opinion by Boland, J., with Cooper, P. J., and Rubin, J., concurring.) OPINION BOLAND, J.- SUMMARY The City of Los Angeles has absolute immunity under Government Code section 831.4 from liability for injuries suffered by a bicyclist who collided with a chain link fence immediately after exiting a class I bikeway located along the Los Angeles River. FACTUAL, LEGAL AND PROCEDURAL BACKGROUND David Prokop sued the City of Los Angeles seeking damages for injuries he suffered while bicycling along a bikeway, designed by the City, which runs along the south side of the Los Angeles River between Riverside Drive and Los Feliz Boulevard. He alleged that, while bicycling along the bike path, east of Victory Boulevard in Griffith Park, he sought to exit the path at its end though an opening provided for bicyclists. When he attempted to cycle through the opening, ignoring the message painted on the pavement that stated "WALK BIKE," he collided with a chain link fence, causing a severe laceration to his forehead, loss of consciousness and neck pain. He claimed bicyclists have to curve sharply several times in order to exit the path and avoid the fence, which he asserted is placed too close to the bike path. Prokop alleged that his injuries were the result of a dangerous condition created by the City, about which the City knew or should have known, and that the City was negligent in failing to protect him against the injuries. The City sought summary judgment asserting, among other defenses, that it is immunized from liability under Government Code section 831.4 (§ 831.4). Section 831.4 provides that public entities are not liable for injuries caused by a condition of any unpaved road that provides access to, among other activities, "riding, including animal and all types of vehicular riding," and of "[a]ny trail used for" those purposes. (Gov. Code, § 831.4, subds. (a) & (b).) Section 831.4 has been interpreted, in a series of cases, to apply to bike paths, both paved and unpaved, to trails providing access to recreational activities, and to trails on which the activities take place. (E.g., Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606 , 609-610 ( Carroll ) [paved bicycle path is a trail under § 831.4, subd. (b); immunity under subd. (b) is not limited to access trails, but extends to a trail whose use is the object of the recreational activity (citing cases)].) In opposition to the motion, Prokop argued the bicycle path was a "Class I bikeway" under Streets and Highways Code section {Slip Opn. Page 3} 890.4. The City was required to conform to "Chapter 1000 of the California Highway Design Manual, entitled Bikeway Planning and Design which it did not do." Therefore, the City was not immune from liability. The trial court granted summary judgment in favor of the City, concluding the matter was controlled by Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097 ( Farnham ), which held that a class I bikeway, as defined in Streets and Highways Code section 890.4, is a trail within the definition of section 831.4, subdivision (b). ( Farnham , supra , at pp. 1099, 1101.) An order granting summary judgment was entered, and Prokop filed a timely appeal. DISCUSSION Prokop argues Farnham was wrongly decided, and the City had a mandatory duty to utilize minimum safety design criteria on the bikeway. Further, Prokop contends that even if Farnham correctly concluded the class I bikeway in that case was a trail giving rise to absolute immunity, the trial court erred in finding the bikeway in this case was a trail. And finally, even if the bikeway is a trail, Prokop contends his accident occurred outside the confines of the trail and therefore no immunity exists. Prokop's arguments are without merit. We begin with section 831.4. It provides, in pertinent part: "A public entity . . . is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway . . . . (b) Any trail used for the above purposes." fn. 1 {Slip Opn. Page 4} Prokop contends the absolute immunity conferred by section 831.4, subsection (b), does not apply, and instead Government Code section 815.6 (§ 815.6) applies. Section 815.6 provides that: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Gov. Code, § 815.6.) Prokop claims the City has a "mandatory duty" under the California Bicycle Transportation Act (specifically, Streets and Highways Code section 891) to "utilize all minimum safety design criteria and uniform specifications and symbols for signs, markers, and traffic control devices established pursuant to Sections 890.6 and 890.8." fn. 2 (Sts. & Hy. Code, § 891.) Because the City did not comply with a "mandatory duty" to construct the bikeway in accordance with the Highway Design Manual, the City is liable for Prokop's injuries. fn. 3 {Slip Opn. Page 5} Prokop's analysis, which would render section 831.4 meaningless, is mistaken, as is apparent from both the text of the statutory provisions governing the liability of public entities and a long line of case authority applying section 831.4. First, the statutory provisions on governmental immunities and liabilities make it apparent that section 831.4 gives the City absolute immunity from injuries caused by the condition of any trail described in section 831.4. Prokop's suggestion that section 815.6 somehow "takes precedence" is mistaken. The Government Code clearly states, in section 815, that, "[e]xcept as otherwise provided by statute," a public entity is not liable for an injury, whether it arises out of an act or omission of the entity, a public employee or anyone else. (Gov. Code, § 815, subd. (a).) While section 815.6 (liability based on failure to discharge a statutory duty) and section 835 (liability based on dangerous condition of property) both expressly provide for liability of the public entity, section 815 further specifically states that: "The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part . . . ." (Gov. Code, § 815, subd. (b).) Accordingly, no conclusion is possible except that section 831.4 gives the City absolute immunity from injuries caused by the condition of the bikeway on which Prokop was injured, if the bikeway is a trail within the meaning of section 831.4. fn. 4 {Slip Opn. Page 6} Second, case precedents have established that a paved class I bikeway is a "trail" within the meaning of section 831.4, and we reject Prokop's contention these cases were wrongly decided. In chronological order, the applicable precedents developed as follows: In Giannuzzi v. State of California (1993) 17 Cal.App.4th 462 ( Giannuzzi ), the court interpreted section 831.4 in the context of a motorcyclist's claim for injuries suffered while riding his motorcycle in a vehicular recreation park. The state had allegedly left dirt pilings directly in the path of an established trail, resulting in a dangerous condition of the property within the meaning of Government Code section 835. fn. 5 {Slip Opn. Page 7} After examining the legislative history of section 831.4, the court concluded that subsection (a) precluded liability for injuries caused by the condition of unpaved roads providing access to the listed recreational activities; subsection (b) precluded liability for injuries caused by the condition of trails used for those activities; and subdivision (c) precluded liability for injuries caused by the condition of any paved trail located on an easement of way providing access to unimproved property. ( Giannuzzi , supra , at pp. 466-467.) Because plaintiff's purpose in the park was the recreational driving of his vehicle, "the application of section 831.4 is established as a matter of law," and "[w]hether the complaint otherwise states a cause of action for dangerous condition liability is made immaterial by this conclusion." ( Id. at p. 467.) In Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413 ( Armenio ), the plaintiff was injured while riding his bicycle in a scenic park along a surfaced trail, allegedly because of a dangerous condition created by improper patching of the trail. The court rejected the claim that section 831.4 immunity applied only to roads or trails providing access to recreational activities, and not to trails on which the activity takes place. ( Armenio , supra , at p. 417.) The court also rejected plaintiff's claim that immunity does not extend to paved trails. ( Id. at p. 418 [unlike subd. (a), which refers to "unpaved" roads, and subd. (c), which refers to "paved" trails, subd. (b) refers to "[a]ny" trail; the logical inference is that the nature of the trail's surface is irrelevant to questions of immunity].) fn. 6 The court also observed that the "plainly stated purpose of immunity for recreational activities on public land is to encourage {Slip Opn. Page 8} public entities to open their property for public recreational use . . . ." fn. 7 ( Armenio , supra , at p. 417.) In State of California v. Superior Court (1995) 32 Cal.App.4th 325 , plaintiff could not recover for injuries sustained when she fell off a horse on a trail in a state park. The court held plaintiff could not, as a matter of law, establish that the trail was in a dangerous or defective condition because the state is absolutely immune from liability for injuries caused by a physical defect of a trail. ( Id. at pp. 326, 328, 329 ["state cannot be liable for a dangerous condition of public property when it enjoys absolute immunity for one necessary component of the liability equation"].) In Carroll , supra , 60 Cal.App.4th 606 , the court held that a paved bicycle path qualifies as a "trail" under the immunity provisions of section 831.4. ( Carroll , supra , at pp. 607, 608, 609 [plaintiff injured while rollerblading on the South Bay Bicycle Path along the coast from Santa Monica through Redondo Beach could not recover for injuries suffered when her left rear wheel struck a crack; terms "trail" and "path" are synonymous, and "[f]urther, under the express terms of subdivision (b), any trail is included in the exemption," citing Armenio , supra , 28 Cal.App.4th 413 .) In Farnham , supra , 68 Cal.App.4th 1097 , the court rejected the contention that section 831.4 did not apply to injuries the plaintiff incurred while bicycling on the Sepulveda Basin Bikeway, a paved "class I bikeway as defined by Streets and Highways Code section 890.4, subdivision (a)" that runs along the perimeter of Balboa Park. fn. 8 ( Farnham , supra , at p. 1099.) In Farnham , the plaintiff contended {Slip Opn. Page 9} that the bikeway was part of the public streets and highways, and therefore did not qualify as a "trail" under section 831.4, subdivision (b). Among plaintiff's arguments was the observation -- repeated here by Prokop -- that Streets and Highways Code section 890 et seq. established a bicycle transportation system, including construction design requirements, and the court observed that sections 890.6, 890.8, 891 and other sections provide for design and safety regulations. ( Farnham , supra , at pp. 1100-1101 & fn. 4.) Farnham rejected the claim: "Regardless of the fact that a bicycle path may come under the broad brush of being part of the streets and highway system in general, a class I bikeway does not qualify as a street or highway. [A] street or highway is open to the public for vehicular travel. [Citations.] A bicycle is not considered a vehicle. [Citations.] A class I bikeway, by definition, is not open to vehicular traffic. Thus, the Bikeway, as a class I bikeway, does not qualify as a street or highway. . . . The Legislature did not exempt from immunity any trails that might be part of the street and highway system in general. As in Carroll, we conclude that a class I bikeway is a 'trail' within the definition of section 831.4, subdivision (b)." ( Farnham , supra , at p. 1101.) Farnham also reviewed the legislative history of section 831.4, and rejected the assertion that the Legislature did not intend section 831.4 immunity to apply to a paved trail. ( Farnham , supra , at pp. 1101-1102 ["[t]he Legislature could have easily chosen to make subdivision (b)'s 'any trail' subject to the same warning requirements of subdivision (c) and opted not to do so"; Armenio has been the law since 1994, joined by Carroll in 1997; "[i]f the Legislature disagrees, it has but to amend section 831.4"].) fn. 9 {Slip Opn. Page 10} We discern no basis for concluding, as Prokop argues, that Farnham was wrongly decided. Prokop argues the analysis in Farnham is "grossly inadequate," and that the "mandatory duties" imposed by the Streets and Highways Code (§ 890 et seq.) must be considered. We have already disposed of this argument: Government Code section 815 clearly provides that the liability of a public entity established by "this part" -- which includes the section 815.6 liability for failure to discharge a "mandatory duty" upon which Prokop relies -- is "subject to any immunity of the public entity provided by statute . . . ." (Gov. Code, § 815, subd. (b); see also Astenius , supra , 126 Cal.App.4th at p. 476 [immunity granted by § 831.4 is absolute; the state's duty under Pub. Resources Code provisions to maintain trails does not affect its immunity under § 831.4; "[e]ven assuming those sections create a mandatory duty, any breach of that duty comes within the scope of the immunity provisions of section 831.4"].) Prokop's further arguments that the conclusions reached by Farnham and Carroll "run directly counter . . . to any reasonable statutory interpretation of Section 831.4" are equally lacking in cogency. Prokop asserts that, even if Farnham is correct, his case is distinguishable for several reasons. First, he asserts his injury was caused by the design of the bicycle gate rather than the condition of the bikeway. No authority concludes that the "condition" of a trail excludes conditions relating to its design. Indeed, the contrary is the case. ( Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074 , 1084 ["to fulfill its purpose, trail immunity must extend to claims arising from the design of a trail, as well as its maintenance"]; see State of California v. Superior Court , supra , 32 Cal.App.4th at p. 328 [the state is absolutely immune from liability for injuries caused by a physical defect of a trail].) Prokop's further claim that trail immunity does not apply because his accident occurred outside the confines {Slip Opn. Page 11} of the bikeway is likewise without merit. A gateway to or from a bike path is patently an integral part of the bike path. ( Amberger-Warren , supra , 143 Cal.App.4th at p. 1085 [rejecting plaintiff's attempt to avoid city's immunity "by identifying the hill next to the trail, rather than the trail itself, as a dangerous condition"].) Finally, Prokop asserts the City had a duty to warn under subdivision (c) of section 831.4, which grants only qualified immunity for injuries caused by a condition of a paved trail or path "on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property . . . ." Prokop maintains that a factual question remains whether the bikeway along the Los Angeles River falls into this category, because the City has stated that the bike path was constructed "on a City of Los Angeles recreational easement." Prokop is mistaken again. A "recreational easement" is not the same thing as an "easement of way," which has been granted to a public entity to provide access to unimproved property. Subdivision (c) of section 831.4 concerns "easements over private property," and its exclusive emphasis " 'is, and has always been, access.' " ( Armenio , supra , 28 Cal.App.4th at p. 417, quoting Giannuzzi , supra , 17 Cal.App.4th at p. 466.) The bikeway along the Los Angeles River is clearly not an easement of way for access to unimproved property. Indeed, Prokop's own expert testified that the bikeway "connects, at this time, only to three main boulevards: Victory (via Riverside), Los Feliz, and Fletcher . . . ." These boulevards are scarcely "unimproved property." ( Armenio , supra , 28 Cal.App.4th at p. 418 [subd. (c) is concerned "with easements granted to public entities specifically to provide access to unimproved property"].) As we have seen, the courts of appeal have been unanimous in holding, since the Armenio case in 1994, that the nature of a trail's surface is irrelevant to questions of immunity. Farnham presented in some detail the policy considerations, both pro and con, underlying the propriety vel non of absolute immunity for paved trails in urban areas. The Supreme Court denied review of Carroll and Farnham , which concluded a class I bikeway was a trail within the meaning of the trail immunity statute. Nonetheless, litigants continue to challenge the applicability of absolute immunity to class I bikeways. Because of the legislative blending of paved bike paths (which are used principally for recreation) into the {Slip Opn. Page 12} bicycle transportation system (which the Legislature established to achieve functional commuting needs), it may be appropriate for the Legislature to reexamine the trail immunity statute and its application to class I bikeways in urban areas. Unless and until the Legislature decides otherwise, however, we conclude no basis exists to depart from established precedent. DISPOSITION The judgment is affirmed. The City of Los Angeles is entitled to recover its costs on appeal. Cooper, P. J., and Rubin, J., concurred. ­ FN 1. Subdivision (c) provides that a public entity is not liable for an injury caused by a condition of "[a]ny paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. . . ." (Gov. Code, § 831.4, subd. (c).) ­ FN 2. Sections 890.6 and 890.8 of the Streets and Highways Code require the California Department of Transportation, in cooperation with city and county governments, to "establish minimum safety design criteria for the planning and construction of bikeways and roadways where bicycle travel is permitted" (Sts. & Hy. Code, § 890.6), and to "establish uniform specifications and symbols for signs, markers, and traffic control devices to designate bikeways, regulate traffic, improve safety and convenience for bicyclists, and alert pedestrians and motorists of the presence of bicyclists on bikeways and on roadways where bicycle travel is permitted." (Sts. & Hy. Code, § 890.8.) ­ FN 3. A declaration from Prokop's expert witness, John Forester, states that the bicycle gate where Prokop's injury occurred does not comply with chapter 1000 of the California Highway Design Manual. According to Forester, chapter 1000 is entitled "Bikeway Planning and Design," and includes design criteria for class I bikeways, including minimum widths, minimum clearances to obstructions, and minimum design speeds, with which the bikeway in question does not comply. Prokop did not present the trial court with a copy of the Highway Design Manual, relying only on Forester's descriptions of various provisions of the manual. The Highway Design Manual available on the Department of Transportation's website states in its foreword that the manual establishes uniform policies and procedures to carry out the highway design functions of the Department, and that "[i]t is neither intended as, nor does it establish, a legal standard for these functions," and that "[i]t is not intended that any standard of conduct or duty toward the public shall be created or imposed by the publication of the manual." (Highway Design Manual (Sept. 1, 2006) ‹›.) ­ FN 4. Prokop seeks to avoid this conclusion, citing several cases for the proposition that immunities granted under other provisions of the Government Code do not allow a governmental entity to avoid liability for failure to discharge a mandatory duty under section 815.6. Those cases have no applicability to Prokop's case. For example, Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559 , 562, stated that "given a mandatory duty, the liability imposed by Government Code section 815.6 . . . takes precedence over the immunity provisions of Government Code section 818.4 . . . ." Section 818.4, however, gives public entities immunity for injuries caused by issuance or refusal to issue permits, licenses or similar authorizations "where the public entity . . . is authorized by enactment to determine whether or not such authorization should be issued . . . ." (Gov. Code, § 818.4.) As Slagle points out, the immunity granted by section 818.4 attaches to discretionary licensing activities only, not to mandatory decisions or nondiscretionary, ministerial acts involved in the licensing or permit process. (Slagle, supra, 67 Cal.App.3d at pp. 562-563.) Similarly, in Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605 (Walt Rankin), the court observed that the immunities granted under sections 818.4 and 818.2 (the latter gives public entities immunity for injuries caused by adopting or failing to adopt an enactment, or failing to enforce a law) "were intended to confer immunity only in connection with discretionary activities, and not in connection with mandatory duties that cannot be ignored." (Walt Rankin, supra, 84 Cal.App.4th at p. 628-629 [finding no statutory basis for granting the city immunity from its failure to discharge mandatory duties relating to payment bonds].) Neither Slagle nor Walt Rankin may be read to suggest that section 815.6 "takes precedence" over the trail immunity provided in section 831.4. (See Astenius v. State of California (2005) 126 Cal.App.4th 472 , 476 (Astenius) [even if provisions of the Pub. Resources Code created a mandatory duty, any breach of the duty is within the scope of § 831.4 immunity].) ­ FN 5. Section 835, on which Prokop also relies, states: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Gov. Code, § 835.) ­ FN 6. Armenio also rejected the argument that subdivision (c), referring to paved trails, would be superfluous if subdivision (b) immunity applied to both paved and unpaved trails. Armenio pointed out that subdivision (c) "is not concerned with property that public entities own in fee, but with easements granted to public entities specifically to provide access to unimproved property." (Armenio, supra, 28 Cal.App.4th at p. 418.) ­ FN 7. The court continued: " '[T]he burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.' " (Armenio, supra, 28 Cal.App.4th at p. 417, quoting legis. committee com., 32 West's Ann. Gov. Code (1980 ed.), § 831.2, p. 293.) ­ FN 8. Streets and Highways Code section 890.4 defines a "bikeway" as "all facilities that provide primarily for bicycle travel." It defines class I bikeways, "such as a 'bike path,' " as providing "a completely separated right-of-way designated for the exclusive use of bicycles and pedestrians with crossflows by motorists minimized." (Sts. & Hy. Code, § 890.4, subd. (a).) ­ FN 9. The Farnham court conceded it is not unreasonable to argue that, when a governmental entity undertakes to improve or create a paved trail in an urban area, it should have the duty to reasonably maintain its condition or face tort liability. (Farnham, supra, 68 Cal.App.4th at pp. 1102-1103.) However: "[T]he flip side of appellant's position is the difficulty cities and counties might face in inspection and repair. Paved trails are subject to changing irregularity of surface conditions . . . . Additionally, the weather can cause dirt or sand to be blown on a trail, creating an unsafe surface for almost any user. . . . Bicycle paths (or bikeways) are not velodromes, and are not necessarily designed for a user to travel as fast as she or he can, although some people often do. In today's litigious society, it does not take a very large crystal ball to foresee the plethora of litigation cities or counties might face over bicycle paths, which are used daily by a variety of people . . . all going at different speeds. The actual cost of such litigation, or even the specter of it, might well cause cities or counties to reconsider allowing the operation of a bicycle path, which, after all, produces no revenue." (Id. at p. 1103.)

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November 23, 2007

BRANDON LEE BRANCO v. KEARNY MOTO PARK, INC., et al., (1995) 37 Cal.App.4th 184

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[No. D019365. Fourth Dist., Div. One. Jul 28, 1995.]
(Superior Court of San Diego County, No. 649571, Anthony C. Joseph, Judge.)

(Opinion by Huffman, J., with Benke, Acting P. J., and Nares, J., concurring.)



Brandon Lee Branco (hereafter Branco) appeals from a summary judgment in favor of Kearny Moto Park, Inc. (hereafter KMP), Debbie Badders, Jerry Badders, the American Bicycle Association (hereafter ABA), and the City of San Diego (hereafter sometimes referred to collectively as defendants) fn. 1 arising from Branco's complaint alleging, inter alia, that the negligent design of an expert caliber jump at KMP's bicycle motocross (BMX) course caused him to suffer injury. Premised on the duty of a sponsor of a sports activity not to increase the risks inherent in a sport, we hold there is a triable issue of fact whether KMP's jump was negligently designed. Accordingly, we reverse the summary judgment. [37 Cal.App.4th 187]

Factual and Procedural Background

On May 19, 1991, 17-year-old Branco, while racing his bicycle on KMP's BMX course, was injured when his bicycle crashed and struck the side wall of the landing area of an expert caliber jump. fn. 2

KMP is a nonprofit, mutual benefit corporation, and (according to a declaration submitted by one of KMP's officers) its officers, who design and operate the moto park, serve on a volunteer basis. fn. 3 KMP's promotional literature indicates that riders race according to age and skill class; new riders can learn and race safely with other new riders; and as they gain experience, they move up in skill class. fn. 4 KMP also provided opportunities for the participants to learn riding techniques from professional BMX racers. ABA's promotional literature claimed BMX was "the safest of all the action youth sports." fn. 5

The parties agreed that by its nature, BMX racing includes bumps, jumps, turns, straightaways and obstacles. The million dollar jump, on which Branco was injured, is also referred to as the "million dollar doubles," and consists of two hills, described by plaintiff's attorney as "two bumps joined together in a saddle-like configuration."

Branco had several years' experience riding BMX bicycles, fn. 6 and he had had numerous prior falls from his bicycle, including one which resulted in a broken collarbone when he misjudged a street curb and flipped over the [37 Cal.App.4th 188] handlebars. He suffered the injury at KMP when he "wheelied" fn. 7 the "million dollar jump" at the BMX course. He had intended to "roll" fn. 8 the million dollar jump, since doing a wheelie would be "stupid" because it would slow him down, fn. 9 but instead he found himself doing a wheelie. Prior to his injury, he had never wheelied the million dollar jump before, but had rolled it, and had never had any problems with it. Slower speed and more control and skill is required to wheelie rather than roll a jump. A couple of times, he had seen other riders wheelie up the million dollar jump, but did not observe them have any difficulties. He had seen people "buckle" fn. 10 and almost lose control on the second part of the million dollar jump. Brandon thought "jumping" the million dollar jump was too dangerous, fn. 11 but he did not think doing a wheelie was too dangerous.

Defendants' expert declared that each BMX track may incorporate its own specific design, and the jumps are designed so that they may be traversed by either riding over them, or jumping over them by making the bicycle airborne. In his opinion, KMP's jumps complied with the guideline that all jumps could either be ridden over or jumped by making one or both wheels airborne. Further, the president of the ABA declared that the ABA sanctions tracks, each sanctioned track must comply with certain rules and regulations, and in his opinion the jumps at KMP were "such that can be expected at any BMX track."

In contrast, Branco's expert identified the following characteristics of the million dollar jump. The first hill of the jump is too steep for the use to which it was put; its 63-degree angle combined with the curvature of the hill creates an 80-degree angle; the steepness of the angle puts the rider at extreme risk because the rider's center of gravity tends to lift up as he approaches the jump, which puts the rider in an extremely unbalanced position. Second, the distance between the two hills of the jump is so great [37 Cal.App.4th 189] that the cyclist has to be at a very high rate of speed to make the second jump. fn. 12 The expert opined that both of these factors tend to put riders at risk or "at the very end of their envelope of ability."

Branco's expert opined that the slope of the first hill of the jump led to the accident since it caused the rider's center of gravity to rise too abruptly. The expert elaborated that most BMX tracks he had seen, which include a jump where the rider aims to get skyborne, will have a very gentle approach slope to the jump, i.e., a 15to 20-degree angle with a very long lead-up, and then an abrupt drop-off on the other side, which gives the rider the feeling of jumping the bike, but does not put him at risk. KMP's million dollar jump was the only one he could remember seeing with such an abrupt change in slope.

In granting the motion for summary judgment, the trial court acknowledged that Branco's subjective knowledge of the risk was irrelevant to the issue of duty under Knight v. Jewett (1992) 3 Cal.4th 296 , 314-315 [11 Cal.Rptr.2d 2, 834 P.2d 696] (discussed below). The court determined that defendants owed no duty to Branco, stating that the deposition testimony of plaintiff's expert did not create a triable issue of fact as to whether defendants increased the risks above those inherent to BMX racing. The court also noted that Branco was a participant rather than a student being coached by the defendants.


[1] A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092 , 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) The evidence of the moving party should be strictly construed, and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko, supra, at p. 1107.) A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. (Ibid.) On appeal from a summary judgment, our review is de novo, and we independently review the evidence submitted. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392 , 1396 [14 Cal.Rptr.2d 679]; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505 , 1511-1513 [285 Cal.Rptr. 385].) [37 Cal.App.4th 190]

[2a] As we explain below, we hold there is a duty to refrain from utilizing BMX jumps which by design pose an extreme risk of injury, and there is a triable issue of material fact whether that duty was breached by virtue of the design of the million dollar jump.

[3] In Knight v. Jewett, supra, 3 Cal.4th at pages 314-315, our Supreme Court fn. 13 held that the doctrine of assumption of risk involves two components, primary and secondary assumption of risk. With primary assumption of risk, the defendant owes no duty to the plaintiff and the doctrine operates as a complete bar to recovery. With secondary assumption of risk, the defendant owes a duty, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty. The doctrine of secondary assumption of risk is part of the comparative fault scheme where the trier of fact considers the relative responsibility of the parties in apportioning the loss resulting from the injury.

Accordingly, we first evaluate whether the defendant's conduct breached a legal duty of care to the plaintiff, i.e., whether the defendant had a legal duty to avoid the conduct or to protect the plaintiff against a particular risk of harm. (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-317.) The nature of a defendant's duty in the sports context depends heavily on the nature of the sport itself. (Ibid.) Additionally, the scope of the duty frequently depends on the defendant's role in, or relationship to, the sport. (Id. at pp. 316-317.)

[4] As recognized by the trial court, Knight sets forth the following standard to guide the determination of the duty of an operator of a sports facility: fn. 14 "Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, 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 v. Jewett, supra, 3 Cal.4th at pp. 315-316, italics added.) [37 Cal.App.4th 191]

Knight utilizes the example of a ski mogul to illustrate a risk inherent in a certain sport as to which there is no duty of care. fn. 15 That is, although "moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them." (Knight v. Jewett, supra, 3 Cal.4th at p. 315.) This duty analysis is not dependent on the plaintiff's subjective knowledge or appreciation of the risk. Thus, a defendant owes no duty to a plaintiff who falls while skiing over a mogul, even if he or she is a total novice with no knowledge of skiing. (Id. at p. 316.) In contrast, a ski resort does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm, since the latter type of risk is not a risk inherent in the sport. Even if the plaintiff actually were aware that a ski resort on occasion has been negligent in maintaining its towropes, he or she could still recover for the negligence. fn. 16 (Id. at pp. 315, 316.)

Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578 , 585 [23 Cal.Rptr.2d 671], applied the standard delineated in Knight, stating that commercial operators of sports and recreational facilities owe a duty to their patrons to ensure the facilities and related services which are provided do not increase the risk of injury above the level inherent in the sport or recreational activity itself. The court observed the duties of a commercial operator of a horse-riding facility could include the duty to supply horses which were not unduly dangerous, to warn patrons renting a given horse of its predisposition to behave in ways which added to the ordinary risk of horse riding, the duty not to provide faulty saddles, not to provide dangerous trails, etc. However, Harrold holds the duty did not extend to providing horses that never spooked, since such sudden movements were "just as inherent in horseback riding as the presence of moguls on a ski slope are to skiers." (Id. at pp. 586-588.) fn. 17

In Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th 817 , 823, the court held that an instructor at a horse riding club, who was assisting the plaintiff during her practice jumps, had a duty to take care that the jumping array she (the instructor) set up was not beyond the capability of the horse [37 Cal.App.4th 192] and rider. (Id. at pp. 822-823.) Recognizing that although the risk of injury inherent in the activity (which included engaging in increasingly higher jumps and at shorter intervals until at some point the obstacles could no longer be cleared without substantial contact) could not be eliminated and in fact created the challenge which defined the sport, the court held there was a triable issue of fact whether the defendants had negligently deployed the jumps at unsafe heights or intervals. fn. 18 (Ibid.) Galardi points out that the plaintiff was not injured during a competition, and she had placed her training in the hands of defendants who were employed to instruct her and coach her, and they inferentially had superior knowledge and experience concerning the sport. (Id. at pp. 823-824.)

In support of its holding, Galardi refers to Tan v. Goddard (1993) 13 Cal.App.4th 1528 , 1535 [17 Cal.Rptr.2d 89], where the court concluded that a jockey racing school owed a duty to see that the horse assigned to a student was safe to ride under the conditions the trainer prescribed for that activity. fn. 19

Although the instructor/student relationship was considered in determining the scope of the duty in the Galardi and Tan cases, there is nothing in those cases which suggests no duty can exist absent such a relationship. fn. 20 The analysis in Knight (and reiterated in Harrold, which does not involve an instructor/student relationship) indicates that an operator of a sporting facility has a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. (Knight v. Jewett, supra, 3 Cal.4th at pp. 316-317.) Knight cites with approval cases which do not involve instructor/student relationships, and which utilize a standard premised on "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." fn. 21 (3 Cal.4th at p. 317, italics added; see also Bush v. Parents Without Partners, supra, 17 [37 Cal.App.4th 193] Cal.App.4th at p. 329 [primary assumption of risk did not preclude cause of action premised on increased risk of falling created by spreading slippery substance on floor by organization sponsoring recreational dance]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal.Rptr.2d 249] [operator of golf course owes duty to minimize risk players will be hit by golf balls].)

[2b] It is not unreasonable to expect a BMX course to refrain from utilizing jumps which by design create an extreme risk of injury. Certainly the jumps, and falls, are inherent to the sport, and under the doctrine of primary assumption of risk, there is no duty to eliminate the jumps entirely, and no duty to protect from injury arising from reasonably designed jumps. However, the sport does not inherently require jumps which are designed in such a way as to create an extreme risk of injury. fn. 22 Accordingly, premised on the duty not to utilize dangerously designed jumps, this case falls under the secondary assumption of risk category, and issues pertaining to Branco's comparative fault are for the trier of fact to decide. Branco's expert's opinions regarding the design of the jump create a triable issue of material fact whether the million dollar jump was designed in such a way as to create an extreme risk of injury. fn. 23

In closing, we note that we do not view man-made bicycle jumps as comparable to the ski moguls which Knight states need not be eliminated since the moguls are part of the challenge and risks of the sport of skiing. There is a distinction between the degree of control exercised over the creation of the nature-made obstacles involved in the sport of skiing (see generally, O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 , 193 [35 Cal.Rptr.2d 467]), as compared to the man-made obstacles of the BMX course involved in the instant case. Thus, whereas no duty is owed to the skier injured on a mogul, a duty is owed to a bicycle racer injured on a bicycle jump which by its design creates an extreme risk of injury. fn. 24 [37 Cal.App.4th 194]


The summary judgment is reversed.

Benke, Acting P. J., and Nares, J., concurred.

­ FN 1. The summary judgment was not applicable to the other named defendants: GT Bicycles, Inc., Bike Shop III, and BMX Action Trick Team Corporation.

­ FN 2. According to Branco's attorney, Branco suffered a broken neck resulting in permanent quadriplegia.

­ FN 3. Jerry and Debbie Badders are officers of the corporation; the City of San Diego is owner and lessor of the property where KMP operates.

­ FN 4. KMP's literature states: "Riders race according to age and skill class so everybody gets the opportunity to compete on a fair and competitive level. Even brand new riders have the chance to learn and race safely with other new riders. As riders begin to gain experience, they move up in skill class. The skill classes are based on the number of wins a rider has in his/her birthday year. All riders start as a novice and work up to intermediate and expert classes as they get better and improve their racing skills.... [¶] You'll need some padding on the frame.... For your protection, a helmet is required. Long-sleeved shirt and tennis shoes and blue jeans round out the list of things you'll need."

­ FN 5. ABA's literature states: "Statistics prove that BMX is the safest of all the action youth sports. A BMX rider is required to wear his safety equipment every time he is on the track. The rider must wear a helmet, long pants and long sleeves or elbow pads. Track operators also help the racer inspect his bicycle so that it will be safe for competition. [¶] Safety comes first at every track. Experienced first-aid people are always on hand to care for the racers."

­ FN 6. At KMP, Branco was classified in the "17 Novice" class. Classifications included novices, intermediates, and experts.

­ FN 7. A "wheelie" means pulling on the handlebars and leaning back.

­ FN 8. To "roll" apparently means to simply ride over it with both wheels on the ground.

­ FN 9. On the day of his injury, his brother told him he should "wheelie the doubles," and Brandon responded that was stupid because he would have to slow down to get more control. It appears from his deposition testimony that Brandon thought slowing down was stupid because he wanted to go fast, so as to finish before the other riders.

­ FN 10. Brandon had never seen anyone crash on the million dollar jump. He had seen people "buckle," which meant that they land too far forward and the front tire hits first, causing them to almost go over the handlebars.

­ FN 11. Prior to the day of his injury, his friends had offered him a bribe if he would jump the million dollar jump. Brandon explained that if a rider tried to jump, and did not jump the whole thing, he could "case it and eat it," which meant the back tire hits the ground first, then the front tire slams down, and the rider could flip over the handlebars. Brandon thought jumping it was too dangerous for him because he does not like heights, whereas he did not have the sensation of being too high when he did wheelies.

­ FN 12. The portion of the expert's deposition testimony included on appeal does not indicate whether the expert believed the jump was unsafe when taken by rolling, doing a wheelie, and/or jumping.

­ FN 13. See Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 , 327 [21 Cal.Rptr.2d 178], and Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817 , 821, footnote 1 [20 Cal.Rptr.2d 270], for discussions of the differences between the justices' views in Knight, which was a plurality opinion.

­ FN 14. On its facts, Knight involves a defendant who was a coparticipant in a football game.

Affirming a summary judgment, Knight focuses on the role of the defendant (i.e., a coparticipant rather than an owner of a sports facility), and holds a duty arises only if the participant in an active sport intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. (Knight v. Jewett, supra, 3 Cal.4th at p. 320.)

­ FN 15. A mogul is "a bump or mound of hard snow on a ski slope." (Random House Dict. of the English Language (2d ed. 1987).)

­ FN 16. Knight specifies that the duty inquiry does not turn on the reasonableness of plaintiff's conduct in choosing to subject himself to the risks of the activity; nor on the plaintiff's subjective knowledge of, and voluntary choice to encounter, the risk; nor on whether plaintiff impliedly consented to relieve or excuse defendant from any duty of care. (Knight v. Jewett, supra, 3 Cal.4th at p. 315.)

­ FN 17. In Harrold, a horse suddenly spooked, and the plaintiff rider, who was not holding onto the reins, was thrown to the ground. (Harrold v. Rolling J Ranch, supra, 19 Cal.App.4th 578 .)

­ FN 18. The instructor in Galardi had raised the height of the jumps without lengthening the distance between them. (Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th at p. 820.)

­ FN 19. The plaintiff in Tan was injured, while following the trainer's directions, on a horse that was known to be behaving abnormally. (Tan v. Goddard, supra, 13 Cal.App.4th at p. 1531.)

­ FN 20. Here, Branco was injured during a competition, was not doing a "wheelie" in response to any specific instruction from an instructor, and had not "employed" KMP in a commercial context to provide him instruction or services. However, KMP's relationship with the BMX riders could be viewed as carrying some of the indicia of an instructor/student relationship, since KMP in its promotional literature offered the activity to riders of any skill level, with new riders having the opportunity to learn, gain experience, and move up in skill class, and offered opportunities to learn techniques from professional BMX racers. Further, Branco could be characterized as having traversed the million dollar jump in a manner consistent with KMP's instructions, since KMP did not disallow "wheelies" on the million dollar jump.

­ FN 21. For example, Knight evaluates a case in which a baseball stadium owner was held liable for its failure to provide a patron protection from flying bats, at least in the area where the greatest danger exists and where such an occurrence is reasonably to be expected. (Knight v. Jewett, supra, 3 Cal.4th at p. 317, citing Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733 , 736 [81 P.2d 625].) The baseball spectator was walking in the stands between home plate and first base when she was hit by an accidentally thrown bat. (Knight, supra, at p. 317.)

­ FN 22. Indeed, ABA's literature refers to BMX racing as "the safest of all action youth sports."

­ FN 23. Given our analysis premised on negligent design of the jump, we need not address KMP's contention that the summary judgment may not be reversed on a "failure to warn" theory since that theory was not specifically pleaded in the complaint but first raised in Branco's opposition to the motion for summary judgment.

Also, we need not discuss Branco's argument that the primary assumption of risk doctrine should not be applied to minors. For purposes of this case, the duty not to utilize a jump which creates an extreme risk of injury applies equally to minors and adults.

­ FN 24. There is no issue in this appeal regarding the potential liability as between the various defendants, and nothing in this opinion is meant to express any views on this matter.

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