The chief judge for the Western District of Pennsylvania has granted the owner of a dirt bike track’s motion to dismiss, finding that a minor, who suffered injuries while riding on the track, assumed the risk of injury.
In so ruling, the court noted that “the unequivocal fact remains that (the plaintiff) — having more than a decade of experience riding on similar off-road tracks — voluntarily engaged in the dangerous sport of dirt bike riding knowing full well the risks of the activity.”
In its analysis, the court noted that co-plaintiff Kameron Hawkins began riding a dirt bike at the age of five or six. “He learned the ins and outs of dirt-bike riding from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races,” wrote the court. “Hawkins began participating in races himself at ‘a young age’ and even secured sponsorships. He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that ‘you don’t think you can handle,’ and that he wore protective gear to guard against the risk of injury. He acknowledges that dirt bike riding is ‘a dangerous sport,’ that ‘you could get hurt’ on a dirt bike, and that a fall could cause ‘injury . . . or even death.’”
Hawkins had been to Switchback Raceway (the defendant) on three prior occasions: once as a spectator, once as pit crew member for his friend, Jonathan Franjko, and once as a rider.
The incident in question occurred on January 9, 2016. The events that day are disputed by the parties.
According to Hawkins, he arrived at Switchback with several friends and met with Switchback’s track manager, Mark Brader, who asked them whether they had been to Switchback before. After the group responded affirmatively, Hawkins said Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. He denied ever being asked to present identification and did not recall being asked his age.
“Switchback’s account diverges considerably,” wrote the court. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. Brader did not recognize Hawkins and thought he appeared to be under the age of 18. Brader reported that he told Hawkins he needed to “take home a waiver and fill it out,” and that he had to “bring [the waiver] out next time and join us another day.” Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he told Hawkins he “could not ride” without waiver and consent forms on file. Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback.
Regardless, Hawkins gained access to Switchback’s indoor dirt bike racing track. Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. Hawkins left Switchback’s facility with his friends without receiving medical attention. Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. The accident occurred four months before Hawkins’ 18th birthday.
Hawkins and his mother and co-plaintiff, Amber Lynn Durbin, commenced the lawsuit on November 15, 2016, asserting one claim of negligence each and one claim of negligence per se together. They alleged that Switchback violated its internal policies and its legal duty of care by failing to ensure that Hawkins, a minor, did not access its facility without parental consent. Each side filed a motion to dismiss.
In its analysis, the court examined the applicable duty of care.
“Switchback maintains that it had no duty to protect Hawkins from risks inherent in off-road dirt bike riding,” wrote the court. “Switchback invokes the no-duty rule set forth in Pennsylvania’s Comparative Negligence Act (CNA), which provides that an operator of an off-road vehicle riding area (such as Switchback) shall have no duty to protect riders from common, frequent, expected and non-negligent risks inherent to the activity, including collisions with riders or objects.’ 42 PA. CONS. STAT. § 7102(b.3)(1). Switchback avers that the possibility of falling and suffering injury while engaged in off-road riding is an inherent, expected risk of the activity, and that the no-duty rule forecloses liability in this case.”
The plaintiffs countered that the no-duty rule is inapplicable, arguing that the “case does not concern a duty to protect patrons from the risks of off-road riding once they have accessed the track, but instead concerns Switchback’s alleged negligence in allowing minors to access its facility in the first instance.”
The court countered that “most tort claims in Pennsylvania are governed by the CNA. But the legislature expressly preserved assumption of the risk as a defense in two categories of activities: off-road vehicle riding, see id. § 7102(b.3)(2), and downhill skiing, see id. § 7102(c)(2). Specifically, as pertains off-road vehicle riding areas, the CNA states: ‘The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.’ Id. § 7102(b.3)(2). The assumption of the risk doctrine operates to negate any legal duty ascribed to those plaintiffs seek to hold liable: ‘to the extent the injured plaintiff proceeded in the face of a known danger, he relieved those who may have otherwise had a duty, implicitly agreeing to take care of himself.’ Montagazzi v. Crisci, 2010 PA Super 78, 994 A.2d 626, 635 (Pa. Super. Ct. 2010) (citing Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 124 (Pa. 1983)). The doctrine operates as a ‘no-duty’ rule; that is, for those facilities for which the legislature preserved the assumption of the risk defense, the owner or operator ‘has no duty to protect the user from any hazards inherent in the activity.’ Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1185-86 (Pa. 2010).
“Pennsylvania courts apply a subjective standard when determining whether a minor assumed the risk of a given activity,” wrote the court. “That is, the court must ask what the ‘particular minor plaintiff knows, sees, hears, comprehends, and appreciates’ with respect to the risk involved. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 269 (3d Cir. 2008) (quoting Berman v. Phila. Bd. of Educ., 310 Pa. Super. 153, 456 A.2d 545, 550 (Pa. 1983)). To grant summary judgment based on an assumption of the risk defense, the court must find that the plaintiff (1) ‘consciously appreciated the risk’ attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was ‘the same risk of injury that was appreciated and assumed.’ Zeidman v. Fisher, 2009 PA Super 161, 980 A.2d 637, 641 (Pa. Super. Ct. 2009) (quoting Hadar v. Avco Corp., 2005 PA Super 326, 886 A.2d 225, 229 (Pa. Super. Ct. 2005)). When reasonable minds could not disagree, the question of assumption of the risk is for the court. See Carrender, 469 A.2d at 124; see also M.D. v. Ski Shawnee, Inc., No. 14-CV-1576, 2015 U.S. Dist. LEXIS 81392, 2015 WL 3866050, at *4 (M.D. Pa. 2015) (citing RESTATEMENT (SECOND) OF TORTS § 469 cmt. e (AM. LAW INST. 1965)).
“No court has explored the assumption of the risk doctrine in the context of off-road riding areas following the 2004 amendment to the CNA. But several courts have interpreted the doctrine as pertains to downhill skiing. The Pennsylvania Supreme Court has held that retention of the assumption of the risk doctrine in that context reflects the legislature’s intent that a ski resort owner owes no duty of care to patrons for any risk ‘inherent’ in downhill skiing.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (Pa. 2000); see also Bjorgung, 550 F.3d at 268. … We can conceive of no reason why these principles, developed in the analogous context of downhill skiing, should not apply with equal force to negligence claims involving off-road riding areas. Compare 42 PA. CONS. STAT. § 7102(b.3)(1)-(2) with id. § 7102(c)(1)-(2).”
“We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger ‘even when the bike is on the ground.’”
The court summarized its position as follows: “The undisputed Rule 56 record establishes beyond debate that Hawkins knew, appreciated, and assumed the risk of injury attending off-road dirt bike riding. He was an experienced dirt bike rider who was fully aware that attempting a jump on a dirt bike carried with it an inexorable risk of injury. And he proceeded to attempt a jump on Switchback’s indoor track notwithstanding that understood risk. Switchback accordingly had no duty to protect Hawkins on January 9, 2016. We will grant summary judgment to Switchback on Hawkins’ negligence claim. Because Durbin’s claim for economic damages is derivative of Hawkins’ individual claim, we will likewise grant summary judgment to Switchback on Durbin’s claim.”
Kameron Hawkins and Amber Lynn Durbin v. Switchback Mx, LLC d/b/a Switchback Raceway; W.D.Pa.; CIVIL ACTION NO. 2:16-CV-1719; 2018 U.S. Dist. LEXIS 155249; 9/12/18
Attorneys of Record: (for plaintiffs) George R. Farneth , II, LEAD ATTORNEY, The Farneth Law Group, LLC, Wellsburg, WV. (for defendant: Michael John Pawk, Lutz & Pawk, Butler, PA.)
