Curtiss c. Short
Filed 2/7/08 Curtiss c. Short
NOT TO BE PUBLISHED
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
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STEVEN CURTISS, Plaintiff and Appellant, v. GARY SHORT, Defendant and Respondent. | C054486 (Sup. Ct. No. 155829) |
Motorcyclists Steven Curtiss (plaintiff) and Gary Short (defendant) collided as they approached a blind curve from opposite directions on a road in a regulated public park dedicated to off-road vehicles. Plaintiff brought this action to recover for personal injuries. Defendant moved successfully for summary judgment on the ground of assumption of risk. Plaintiff appeals. We shall affirm the judgment.
BACKGROUND
The facts are essentially undisputed, except where noted.
The accident occurred on Westside Road, inside an off-road vehicle park in Shasta County called Gene Chappie Off-Highway Vehicles (OHV) riding area. Westside Road (also designated Trail 1 in the area), is a publically maintained dual use roadway, a designation which means that it is open for all vehicles, including off-highway vehicles. Westside Road begins at Coram Road, follows the south bank of Shasta Lake, to the west over Behemotash Mountain, and intersects with East Fork Road; along the way it intersects with several other trails.
Westside Road is a hard packed dirt road, with loose gravel, rocks and ruts in a few places. It varies in width from 16 to 23 feet, and is not marked with a centerline. There are no traffic control signs posted, except a warning sign that logging operations may be sharing the road with OHV traffic.
On the day of the accident, plaintiff was riding a Yamaha motorcycle and wearing riding gear designed for off-road motorcycling. Earlier in the day, plaintiff had transported his motorcycle by truck to the Gene Chappie OHV Park Staging Area on Coram Road, and then proceeded to Westside Road. Plaintiff and his brother-in-law rode up Westside Road to Behemotosh and, coming down off Behemotosh, the two were riding fast and engaging in a little speed competition, and plaintiff occasionally crossed over onto the left side of the roadway.
At the time of the accident, plaintiff was riding his motorcycle on Westside Road, returning to the Gene Chappie OHV Park Staging Area with the intention of placing the motorcycle in his pickup truck. He was on the right side of the road as he came around a blind intersection; plaintiff did not see defendant approaching on an off-road motorcycle from the opposite direction. The two collided.
Plaintiff brought this personal injury lawsuit, claiming that the accident was caused by defendants negligent operation of his off-road motorcycle.
Defendant moved for summary judgment, arguing that plaintiff cannot establish that defendant is legally responsible for plaintiffs injuries because plaintiff assumed the risk of participating in the potentially dangerous sport of off-road motorcycling. Among other evidence, defendant relied upon plaintiffs admission that his purpose on Westside Road on the date of the accident was recreational. In the alternative, defendant argued, plaintiff is precluded from recovering general damages because he was not licensed to operate a motorcycle on a public street (Civ. Code, 3333.4, subd. (a)).
Plaintiff opposed the motion, arguing that the doctrine of primary assumption of the risk does not apply to this case because (1) defendant caused the accident by driving on the wrong side of a public roadway open to street-legal vehicles and, a circumstance which is not part of the normal risk of any recognized sporting activity; and, (2) at the time of the accident, plaintiff was not engaged in any sport. In support of his opposition to the motion, plaintiff submitted the declaration of Thomas K. Shelton, a former California Highway Patrol officer currently engaged in the business of accident reconstruction consulting. Among other things, Shelton reviewed the Chappie Shasta Off-Highway Vehicle Guide prepared by the Bureau of Land Management, which provides trail riding and safety tips and advises Ride single file at safe speeds on the right side of roadways. All roads and trails are two way so anticipate oncoming traffic. Respect other road and trail users. Shelton opined that [m]otorists must follow the rules of the road when operating any vehicle on off-highway, dual use roadways; at the collision site, Westside Road is a publicly maintained, dual use, roadway; operators of motor vehicles using Westside Road at the accident site have an obligation to obey the rules of the road and have the right to assume that others will be doing the same; and, the primary cause of this collision was improper driving with the elements for operating a motor vehicle on the wrong side of the road by defendant.
The trial court granted defendants motion for summary judgment. It found that the undisputed facts establish that plaintiff was engaged at the time of the accident in the sport of off-roading and, even if defendant violated the rules of the road designed to protect persons using dual use roads, such violations do not nullify plaintiffs assumption of the risk inherent in the activity in which he voluntarily engaged.
DISCUSSION
I. Standard of Review
Summary judgment should be granted if no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) The burden of persuasion is on the party moving for summary judgment. When the defendant is the moving party, the defendant must show the action has no merit. That showing is made if the defendant either shows that an element of the plaintiff cause of action must be established or establishes that a complete defense exists. The burden then shifts to the plaintiff to show that a triable issue of material fact exists with respect to the cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850851.) On appeal, we review the record and the trial courts decision de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. Primary Assumption of the Risk Applies to Off-Roading
To prevail on his negligence claim, plaintiff had to show, among other things, that defendant owed him a legal duty of care and that he breached that duty. (Merrill v. Navegar, Inc., supra, 20 Cal.4th at p. 477.) The question of whether the defendant owes the plaintiff a duty of care is one of law to be decided by the court, not by a jury, and therefore it generally is amenable to resolution by summary judgment. [Citation.] (Kahn v. East SideUnionHigh School Dist. (2003) 31 Cal.4th 990, 1004.)
In the context of active sports, however, the doctrine of primary assumption of the risk creates an exception to the general rule that people have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, 1714.) (Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight).) The Supreme Court in Knight recognized that careless conduct by coparticipants is an inherent risk in many sports, and that holding participants liable for resulting injuries would discourage vigorous competition. Accordingly, those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. (Shin v. Ahn (2007) 42 Cal.4th 482, 486; Knight, supra, at pp. 318319.) Rather, sports participants have only a limited duty of care to their coparticipants, which may be breached only if they intentionally injure them or engage[] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. [Citation.] (Shin v. Ahn, supra, at p. 486; Knight, supra, at p. 320.)
An activity falls within the primary assumption of risk doctrine if it is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. [Citations.] [I]n various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond ones abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. [Citation.] There is no requirement that athletes be acquainted with each other or join together . . . to be considered coparticipants within the meaning of Knight. [Citations.] (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 739.)
Because the sport of off-road motorcycling or off-roading is one in which driving fast, making sharp turns, and not taking certain precautions, is held not to be totally outside the range of ordinary activities, and involves inherent risks the participants may be involved in collisions and suffer serious injury or death, courts have held that it is one to which the doctrine of primary assumption of the risk applies. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1254, see also Huff v. Wilkins, supra, 138 Cal.App.4th at p. 739.)[1]
III
Summary Judgment Was Properly Granted
Plaintiff contends on appeal, however, that the primary assumption of risk doctrine does not foreclose his tort action for negligence because (1) the parties were not off-roading but riding off-road motorcycles on a dual use public roadway, to which special use rules apply, which defendant violated; and (2) at the time of the accident, plaintiff was not engaged in any sport because he was merely returning to his pick-up via a dual use roadway to load up and leave. Neither contention has merit.
We first reject plaintiffs argument that the assumption of the risk doctrine does not apply because, from [plaintiff]s perspective, he was no longer engaged in a sport at the time of the accident. Plaintiff admits that minutes earlier, while riding his off-road motorcycle on Westside Road, a road open to off-road vehicles, in a designated off-road vehicle park, he was in fact engaged in the sport of off-roading. However, he contends, because he intended to leave the off-road park and was riding in the direction of the staging area, he was no longer engaged in a sport. He is mistaken. Whatever his subjective intent, at the moment of collision, plaintiff was still riding an off-road motorcycle, on the same road open to off-road vehicles, in a designated off-road vehicle park. Until his intent to leave the off-road park manifested itself in his actual departure from the zone of danger, he remained a participant in the sport of off-roading. (Cf. Lackner v. North (2006) 135 Cal.App.4th 1188, 1202; [concluding there was a triable question of fact as to whether the defendant snowboarders conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of snowboarding when he collided with skiers who had finished their run and were stopped in a flat, open rest area at the bottom of the run].)
We also reject plaintiffs contention that defendants alleged failure to follow the special rules for the unique dual purpose road precludes the application of assumption of the risk doctrine. The courts of this state have repeatedly affirmed that the existence of statutes or regulatory provisions do not abrogate, supersede or displace the primary assumption of risk doctrine unless the legislative authority has explicitly and unambiguously manifested a clear intent to do so. (Peart v. Ferro, supra, 119 Cal.App.4th 60, 79-80, citing Cheong v. Antablin, supra, 16 Cal.4th at pp. 10691070; id. at p. 1074 (conc. opn. of Kennard, J.); id. at p. 1079 (conc. opn. of Chin, J.) [ordinance delineating duties of skiers did not abrogate primary assumption of risk doctrine as applied to sport of skiing]; Moser v. Ratinoff, supra, 105 Cal.App.4th at pp. 12251226 [Vehicle Code provisions designed to protect persons using public roads do not nullify plaintiffs assumption of risk in participating in organized long-distance bicycle ride]; Distefano v. Forester, supra, 85 Cal.App.4th at pp. 12661267, 12711274 [statutory provisions proscribing driving off-road vehicles at unreasonable or unsafe speed, or with willful and wanton disregard for the safety of persons or property, did not evince any legislative intent to supersede or modify assumption of risk doctrine and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight].)
Plaintiff has cited us to no cases inconsistent with this view, and we have found none. (Cf. Peart v. Ferro, supra, 119 Cal.App.4th at p. 80.)
The trial court did not err in finding that plaintiff cannot maintain his negligence action against defendant because the doctrine of primary assumption of risk bars plaintiff from establishing that defendant owed him a duty. Summary judgment was proper.
DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
MORRISON , J.
We concur:
SCOTLAND, P.J.
SIMS , J.
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[1] Plaintiff asserts that these cases are wrongly decided: in his view, off-roading cannot be a sport because, unlike golf and tennis, it lacks well established rules on which there is a widespread consensus. We are unpersuaded: a physical activity does not have to involve such rules in order to be considered an active sport for the purpose of applying primary assumption of the risk doctrine. (See Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 [skiing]; Peart v. Ferro (2004) 119 Cal.App.4th 60, 74 [use Sea-Doo personal watercraft]; Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 12221223 [bike racing]; Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1573 [personal use of jet skis]; Mastro v. Petrick (2001) 93 Cal.App.4th 83, 90 [skiing and snowboarding]; Staten v. Superior Court (1996) 45 Cal.App.4th 1628 [ice-skating].)
