A magistrate judge from the Southern District of California has denied a motocross exhibition promoter’s motion for summary judgement in a case in which it was sued by the family of a competitor who died after a failed practice jump.
In so ruling, the court ruled that questions of fact still remain about whether the promoter increased the inherent risk of the sport, making it premature to apply the assumption of risk doctrine.
Jim McNeil was a professional motocross rider and jumper who had participated in such events throughout the world since 2000. He began riding motorcycles at the age of five. McNeil’s interest in motorcycles continued after high school, where he worked as a motorcycle mechanic and developed a friendship with professional rider John Distler. During these years McNeil practiced tricks jumping on ramps and used foam pits for landing. McNeil turned professional in 2000.
McNeil quickly rose to the top of the freestyle motocross ranks, and began competing at the X-Games in 2005. However, he died on November 6, 2011 while attempting a motorcycle jump at a Boost Mobile-FreestyleMX freestyle motocross exhibition at the Texas Motor Speedway in Fort Worth.
The exhibition took place from November 4 to 6, 2011 at the AAA Texas 500 NASCAR Event at Texas Motor Speedway. Only riders hired by FreestyleMX were allowed to participate. McNeil provided his own motorcycle, helmet, gloves, equipment and maintenance. For the jump sequence at this event, the defendants placed a motorhome between the takeoff and landing ramps, with a gap between the end of the motorhome and the landing ramp. The distance between the two ramps was 75 feet.
On November 5, 2011, McNeil made multiple practice jumps before stopping due to wind conditions. The next day, McNeil attempted another practice jump. As he ascended the takeoff ramp, McNeil’s motorcycle experienced a malfunction which caused it to “bog,” resulting in insufficient power to reach the landing ramp. McNeil’s motorcycle first hit the back of the motorhome and toppled to the ground, causing his death.
McNeil’s wife and parents sued defendants FreestyleMX.com and its owner, Marc Burnett, who organized and set up the event. They alleged: (1) negligence and gross negligence; (2) loss of consortium; and (3) wrongful death. They also alleged that the defendants acted recklessly and with malice in conscious disregard of Jim McNeil’s safety, entitling them to punitive damages.
In January 2015, the court heard the defendants’ first summary judgment motion, where they argued that McNeil freely and knowingly executed a waiver and release that relieved the defendants of any and all liability for any injury McNeil suffered. The court denied the defendants’ motion because it found a question of fact as to whether McNeil signed the waiver and release. It also found that even if valid, the waiver and release would not release a gross negligence claim under California law, the substantive law that applies in this case.
In a second motion to dismiss, the defendants argued that, under the primary assumption of risk doctrine, the defendants owed no legal duty to protect McNeil from catastrophic injury and death, as those are inherent risks in the sport of freestyle motocross.
Early on in its analysis, the magistrate judge, citing Knight v. Jewett, 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992), noted a defendant cannot be expected to eliminate the inherent risk, since it could “chill” participation in that sport. At the same time, the judge wrote that “those involved do have a duty not to increase the risk to a participant over and above those inherent in the sport. Knight, 3 Cal.4th at 316. … If a defendant breaches that duty, it is negligent.”
To determine if a defendant breached that duty, “a court must evaluate: (1) the fundamental nature of the sport; and (2) the defendant’s relationship to the sport. Id.”
On the first question, the court concluded that “freestyle motocross—whether generally described as a sport or as entertainment—involves a challenge with risk of serious injury that is done for ‘thrills’ and requires physical exertion and skill. These elements, coupled with the fundamental nature of the activity, render freestyle motocross amenable to application of the primary assumption of risk doctrine.”
On the second question, the answer was more amorphous as the parties debated whether the defendants had an “affirmative duty to minimize risks that are inherent to the sport. See, e.g., Connelly v. Mammoth Mountain Ski Area, 39 Cal. App. 4th 8, 10, 45 Cal. Rptr. 2d 855 (1995).”
The plaintiffs argued that the defendants “carry a simplistic view of the inherent risks. They assert the inherent risks to freestyle motocross also include any risks that cannot be eliminated without altering the fundamental nature of the sport. See Knight, 3 Cal.4th at 317.”
On the latter point, the court seemed to agree with the defendants, writing that “falling short of the 75-foot jump is a risk that cannot be eliminated without altering the fundamental nature of the activity.” Thus, “primary assumption of the risk applies to freestyle motocross. In applying primary assumption of the risk, the court finds that as Jim McNeil raced up the takeoff ramp, he assumed the risk of failure—due to whatever cause—to clear the jump. But the question remains whether the defendants increased the inherent risk of his catastrophic injury and death by failing to provide airbags or by failing to close the gap between the motorhome and the landing ramp.”
The court continued: “There is a question of fact as to whether, in November 2011, airbags were in standard use to protect riders from injuries additional to those they may suffer when they assumed the risk of falling. There is also a question of fact as to whether the failure to use them was an ‘extreme departure from the ordinary standard of conduct.’ See Knight, 3 Cal.4th at 320. As for the gap between the end of the motorhome and the landing ramp, the court finds there is insufficient evidence to determine whether that gap is a risk inherent to or excessive to the sport. Whether the arrangement of the jump sequence increased the inherent risks of this type of freestyle motocross is a question of fact for the jury.”
In summary, the defendants “have not met their burden on summary judgment to show that no genuine material fact exists as to whether they increased the risks inherent to freestyle motocross.”
Estate of James Ryan McNeil, by and through Stephanie Berkes, as Successor in Interest et al. v. Freestylemx.com, Inc., a California Corporation et al.; S.D. Cal.; Case No.: 13cv2703 NLS (KSC), 2016 U.S. Dist. LEXIS 47944; 4/8/16
Attorneys of Record: (for plaintiffs: Heather Venrick Davis, LEAD ATTORNEY, PRO HAC VICE, Payne Mitchell Law Group, Dallas, TX; Neal A. Markowitz, LEAD ATTORNEY, Thorsnes Bartolotta McGuire, San Diego, CA; James Lee Mitchell, PRO HAC VICE, Dean Gresham, Payne Mitchell Law Group, Dallas, TX. (for defendants) Eduardo Martorell, LEAD ATTORNEY, Bordin Martorell LLP, Howard Hughes Center, Los Angeles, CA; Joshua Bordin-Wosk, LEAD ATTORNEY, Bordin Martorell, LLP, Los Angeles, CA.
