California Appeals Court Addresses Question about Role of Co-Participant in Negligence Case

Nov 24, 2017

A California state appeals court had affirmed a trial court’s ruling that dismissed the claim of a dirt bike rider, who sued another rider, her fiancé, for negligence after she suffered a devastating injury. In so ruling, the court relied upon the assumption of risk doctrine and the high-threshold a plaintiff must cross to prove that a co-participant was negligent.
Plaintiff Kemberly Foltz and defendant Darryl Wayne Johnson met in September 2010 and were engaged by September 2011. During their relationship, the couple frequently took their blended family to Dove Springs Off-Highway Vehicle Area (Dove Springs) in the Mojave Desert, to camp and ride dirt bikes.
The terrain and elevation at Dove Springs varies, ranging from easier hard-packed trails, to flat but sandy areas, and more difficult areas with soft, deep sand. Johnson is an experienced dirt bike rider, and often has ridden and is familiar with the terrain at Dove Springs. Foltz is not an experienced rider, according to the court. Before she met Johnson, Foltz operated a dirt bike three times during junior high. After meeting Johnson, the first time Foltz operated a dirt bike herself was during her first trip to Dove Springs. On that occasion, she rode Johnson’s 250cc dirt bike for about 30 minutes, and stayed on trails close to camp to avoid deep sand. She fell several times during that ride because Johnson’s bike was too big and too heavy for her, and because the area was sandy. Subsequently, Foltz switched to a smaller (185cc) bike, which she was better able to control. Foltz understood that there is a risk that people who ride dirt bikes in sand or off road may have accidents and suffer serious injuries.
Several months before September 2011, Foltz bought her own 185cc dirt bike. She rode her dirt bike during five weekend trips during the months before September 2011 on beginner trails. Dove Springs was for more advanced riders.
The Accident at Dove Springs
The family went camping at Dove Springs for Labor Day weekend 2011. On the afternoon of September 4, 2011, Johnson suggested that he and Foltz ride to a dry riverbed about an hour away. According to Foltz’s deposition testimony, Foltz had told Johnson that she did not like riding in sand. He had seen her fall in the past when the sand got too deep. Johnson “guaranteed [her] that it was all road. That it was all flat and easy to ride on.” Johnson had been on this ride about 15 times before. Foltz agreed to go and donned riding gear. They each rode their own dirt bikes. It was a sunny, clear day, without wind or dust. Foltz could see the road and dunes ahead.
Foltz and Johnson had an uneventful ride from camp to the riverbed, without falls or accidents. When they stopped at the riverbed, Johnson suggested they continue riding. Foltz agreed, after seeing that there was a trail heading in the direction Johnson wanted to travel. She rode behind Johnson on a riverbank trail.
Describing the events preceding her fall in her deposition, Foltz testified that after about two hours of riding on the riverbank trail, “the trail started to end and I saw that we were headed toward a dune. And I told [Johnson] I’m not going up there. He said he guaranteed me there was a trail, just to follow him.”
They “headed upwards” into the dune. When she first noticed the trail was ending, she was already slowing down because her bike was sinking in the sand. She denied that after she realized the trail had ended, she continued to “ride for some distance,” but then added: “I was struggling just to keep my bike up. I had to speed up to get through the sand. Mr. Johnson kept riding in front of me. At one point he turned around and I signaled to him that I’m turning around. I’m like I’m finished. I’m not doing this. He’s like you can do it. You can ride through here. And I said no. I’m heading back to the campground.”
Asked to give her “best estimate how far in terms of distance [she] traveled where there was this trail,” she replied, “About 10 minutes.” Her testimony continued: “As soon as I stopped—I realized the faster I went, I could get out of the sand. And I was turning around, and I’d say I was going … 30 to 40. I was speeding up because now I’m heading out of the dune and I’m going downhill.”
“She was traversing the dune on a route different than the one she used to follow Johnson uphill. The terrain was very steep and sandy,” wrote the court. “Foltz was travelling at about 40 mph, was unable to control her bike and was afraid. In the dune, there were large grooves—a foot wide and six inches deep, with a hard surface, and deep sand and rocks along the side. The grooves appeared to have been carved out by downstream water from previous rains. Foltz’s bike got stuck in a groove, and her back tire was ‘fishtailing’ because of the sand. She was afraid because she could not stop or control her bike. Foltz hit and cleared (jumped over) a big rock at about 40 mph, and continued downhill. A few minutes later, her bike stopped when it hit a second rock, and Foltz was thrown over the handlebars. When she landed, her bike fell on her back, causing severe spinal injuries.”
Foltz filed a personal injury action in December 2012, alleging negligence and four other causes of action. Johnson answered the complaint, and denied all allegations as well as asserted more than 30 affirmative defenses.
In December 2014, Johnson moved to dismiss, claiming Foltz assumed the risk of injury. The court ruled for Johnson in September 2016.
Foltz appealed, claiming that Johnson failed to satisfy his burden to demonstrate that he did not increase the risks beyond those inherently associated with off-road dirt biking, or engage in conduct recklessly outside the range of ordinary activity involved in that sport or recreational activity.
The court first reviewed assumption of the risk doctrine, relying primarily on Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696].
While Foltz conceded the doctrine of primary assumption of risk applies in the instant case, she insisted that a material factual dispute remains whether Johnson increased the risk of harm beyond the risks inherent in off-road dirt biking, or engaged in reckless conduct totally outside the range of ordinary activities involved in that sport. Specifically, she claimed she was “duped by Johnson’s guarantee of a trail into riding on a hilly, sandy surface, even though Johnson knew she did not feel safe doing so and was afraid,” according to the appeals court.
But the appeals court was unmoved.
“Off-road riding involves the inherent risk that one will fall off or be thrown from one’s bike,” wrote the court, citing Distefano v. Forester (2001) 85 Cal.App.4th 1249 [102 Cal. Rptr. 2d 813] (Distefano).
“Johnson’s promise of a continued or additional flat trail in an effort to urge Foltz to continue their afternoon ride was insufficient as a matter of law to increase the inherent risks of off-road dirt biking. First, his promise or ‘guarantee’ of a trail was accurate. It is undisputed that the riders followed a trail along the riverbed for up to three hours, most of which was on flat surface. It is also undisputed that the riders followed a trail for some length of time before approaching the dune, and Foltz chose to go on that trail, even though it was heading uphill on a sand dune. Second, Johnson’s ‘guarantee’ did nothing to conceal the obvious nature of the terrain. It is undisputed that Foltz observed the large ‘mountainous’ dune as she approached (the day was clear and sunny, there was no wind or dust and no other dunes in sight), and informed Johnson she would not ascend. Notwithstanding that unequivocal pronouncement, and despite her fear of riding in sand, Foltz agreed to follow Johnson up the sandy hill after he promised a trail. She was aware of her limited experience and abilities and appreciated the potentially severe risks inherent in dirt bike riding—particularly the risk that she could fall off in the sand, just as she had before at that very park. Having chosen to ascend the hill, Foltz implicitly understood she would have to descend at some point. It is undisputed that Foltz made a unilateral decision to turn back and travelled down on a different path than the one she took up. That route, down steep, sandy and rocky terrain, was indisputably difficult to traverse and, at 40 mph Foltz could not control her bike. When she was thrown off, she sustained the very sort of injury one risks in this sport.”
The appeals court next turned to whether Johnson engaged in reckless conduct outside the range of activities generally involved in dirt bike riding.
In determining whether a coparticipant in a sport breaches a duty of care through “reckless” conduct, the court relied upon Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 995—996 [4 Cal. Rptr. 3d 103, 75 P.3d 30]
“In Kahn, the plaintiff was a 14-year-old member of a school swim team. She was a competent swimmer but lacked competitive swimming experience and was intensely afraid of injuring her head by diving in shallow water. (Kahn, supra, 31 Cal.4th at p. 998.) She shared that fear with her coach, but received no training in shallow-water race diving. (Ibid.) Instead, he assured Kahn she would not have to dive at meets. (Ibid.) However, minutes before a meet, the coach told the plaintiff she would have to dive. She panicked and begged him to change the rotation, so she would not have to dive in the shallow pool. He refused and told her that, if she did not dive, she could not compete nor remain on the team. (Ibid.) With the help of some teammates, Kahn tried a few practice dives; she broke her neck on the third one. (Ibid.) She sued based on negligent supervision and training.
“The Supreme Court reiterated the principle that urging an inexperienced participant in a sport to engage in a more difficult maneuver was not tantamount to increasing the risks associated with the sports activity. (Kahn, supra, 31 Cal.4th at p. 1008 [‘pushing an athlete to compete, excel, or move to the next level of competence ordinarily does not form a basis for liability on the part of athletic instructors and coaches’]; id. at p. 1011 [‘In order to support a cause of action in cases in which it is alleged that a sports instructor has required a student to perform beyond the student’s capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a student’s injury or that the instructor acted recklessly in the sense that the instructor’s conduct was ‘totally outside the range of the ordinary activity’ (Knight, supra, 3 Cal.4th at p. 318) involved in teaching or coaching the sport.’].)
“However, the court concluded the case could not be resolved on summary judgment as there was conflicting evidence whether the coach had provided any instruction or, if so, whether that instruction followed recommended training sequence, and whether the plaintiff was threatened. (Kahn, supra, 31 Cal.4th at pp. 1012—1013.) If a jury found the coach directed the plaintiff to perform a shallow racing dive without providing proper instruction in contravention of her stated fear, after creating a false sense of security by promising she need not dive at meets, and then breached that promise during the last-minute heat of a competition under threat of punishment for refusal to comply, that could constitute sufficient recklessness by the coach to establish an exception to primary assumption of risk. (Id. at p. 1013.)
“The circumstances here differ markedly from those in Kahn. Foltz was a relatively inexperienced off-road rider. But she was not a child, was not under any pressure or engaged in a competitive event, and Johnson was not her coach or supervisor, and was not in a position of authority over her. Although Johnson was aware that Foltz was afraid of and disliked riding on sand, there is no evidence he insisted she ride up the dune or that he threatened her with any consequence if she refused to do so. Rather, Johnson encouraged a coparticipant in a recreational activity to traverse the dune based on the promise of a trail. Mere encouragement does not establish an exception to primary assumption of risk. (See Kahn, supra, 31 Cal.4th at pp. 1008—1010.)”
Kimberly Foltz v. Darryl Wayne Johnson; Ct. App. Calif., 2d App. Dist., Div. Four; B277995, 16 Cal. App. 5th 647; 2017 Cal. App. LEXIS 931; 10/25/17
Attorneys of Record: (for plaintiff) Grassini, Wrinkle & Johnson, Roland Wrinkle and Marshall Shepardson. (for defendant) Law Office of Cleidin Z. Atanous and Cleidin Z. Atanous.


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