Opinion
F048746
5-1-2007
DIANE PALASKI et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.
Hinton, Alfert & Sumner, Peter W. Alfert and Elise R. Sanguinetti, for Plaintiffs and Appellants. Bruce R. Behrens, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, Jeanne R. Scherer, Assistant Chief Counsel and Kevin M. Corrington, for Defendant and Respondent.
NOT TO BE PUBLISHED
In this case, we are asked to determine whether the primary assumption of risk doctrine, as formulated by the California Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), operates to completely bar a negligence action against the State of California arising from the death of a solo long-distance bicyclist due to a dangerous condition of a public road. We hold that the State can assert the primary assumption of risk doctrine in such circumstances. Thus, we affirm the grant of summary judgment for the State.
STATEMENT OF THE FACTS
The basic facts are undisputed. On June 21, 2003, on his 65th birthday, plaintiffs decedent, Richard Lewis Palaski (Palaski), was engaged in a solo long-distance bicycle ride from his home in Clayton, California to Yosemite National Park. He planned to spend two days in Yosemite with his family to celebrate his birthday. While crossing a bridge located about 10 miles from the Highway 120 entrance to Yosemite, Palaski lost control of his bicycle, went over a bridge rail and fell with his bicycle 75 feet to his death on the rocks below the bridge.
Appellants filed a Motion to Augment Record on Appeal. Given that there is good cause and that the materials were considered by the Superior Court, we grant the motion.
Prior to the accident, Palaski was riding on the right shoulder of Highway 120 downhill at a speed of 15 to 25 miles per hour. At the end of the downhill slope the road turns left and crosses a bridge. On the date of the accident, the bridge suffered from three conditions. First, there was a bump one to two inches high along the expansion joint that connected the bridge to the rest of Highway 120. Second, the height of the bridge rail on the right side was 30.5 inches above the pavement, which was less than the 32 inches that the design plans had called for. Third, the right shoulder of the bridge was covered by sand estimated to be one-quarter to one inch thick. According to plaintiffs experts, this sand obscured the bump.
The dissent contends that this statement, based upon the trial courts findings, about the height of the sand "fails to acknowledge evidence submitted by plaintiffs experts who opined that the sand was as high as the mound itself." (Dis. opn., post, at p. 3.) We note that only two of plaintiffs three experts opined on the depth of the sand and their opinion was not explicit that the sand was as high as the mound itself. One expert based his opinion on a review of exhibits showing the mound. (See declaration of Roy W. Anderson, ¶ 31, pp. 8-9 ["The depth of the sand appears to be as high as the bump itself in Exhibits E and F to the Chesson Declaration as a significant portion of the bump is not visible because it is covered by sand"], italics added.) The other expert based his opinion on the testimony of a percipient witness, Gary Dobson. (See declaration of Robert L. Cargill, ¶ 6 , p 3 ["At the time of the accident, witness Dobson further observed that the roadway shoulder was covered with sand at a one-inch depth extending from the bridge rail to the white fog stripe that divided the roadway from the shoulder."]) In his deposition, however, Dobson merely testified that he thought the sand was "probably" an inch deep. In any case, Cargill concluded that "sand that was between 1/4" and 1" deep on the shoulder ... caused a loss of traction for Palaskis bicycle." (Declaration of Robert L. Cargill, at ¶ 8(a), at p. 5.) Cargill also opined that the bump was 1-1/2" to 2" high, (id. at ¶ 8(b), p. 5), so it is unclear how he could have reached a conclusion that the sand was as high as the mound. Nevertheless, we agree that plaintiffs produced evidence that the sand obscured the mound.
According to the undisputed declaration by a CalTrans bridge engineer, it is inherent that a bridge like the one at issue will expand and contract, and such expansion will cause the expansion joint to expand and form a bulge or hump in the area surrounding and above the expansion joint. Such bulges or humps are typically one to two inches in height.
The same CalTrans engineer also stated that the design plans for the bridge rail called for a rail height of about 34.5 inches as measured from the surface of the road, and for about 2.5 inches of AC pavement to be placed on top of the road surface, resulting in an effective rail height of 32 inches. However, due to the difficulty in laying and compacting the AC pavement, sometimes the pavement was not properly compacted, resulting in an effective bridge rail height of 30.5 inches at some places along the bridge.
Another CalTrans engineer had recommended a "standard" rail design for the bridge because the bridge and the surrounding highway were neither areas of high bicycle usage nor designated as a bicycle route or bicycle lane. While bicycle use of Highway 120 (including the bridge) is permitted, it is infrequent. The standard bridge rail has a height of 32 inches; a bridge rail designed for bicycle traffic would have been at least 54 inches high.
CalTranss Groveland yard maintains the bridge. Groveland schedules and conducts maintenance operations — application and sweeping of sand and repair of uneven pavement surfaces — based on motor vehicular use of Highway 120. Sand from winter maintenance applications is routinely found on the shoulder surfaces of Highway 120 in the Groveland area until the roadway and shoulders are completely swept after the winter season. When the final sweeping occurs depends upon when Groveland is scheduled to use the sole available sweeper, which is assigned by rotation to each mountain region yard.
On April 18, 2003, during a late-season snowstorm, the Groveland crew applied sand on Highway 120, including on the bridge. Final 2003 sweeping of Highway 120 occurred in late June or early July, after Palaskis accident, because that was when Groveland was scheduled to use the sweeper that year; Groveland did no sweeping between the April snowstorm and Palaskis June 21, 2003 accident.
On October 14, 2003, the Groveland crew scraped the mounded expansion joint material at both ends of the bridge to approximately level with the bridge roadway surface, to prevent the snagging of the crews snowplow blades during winter operations.
Palaski was in the midst of making his annual Yosemite ride when he died in the accident. According to Palaskis wife, about 15 years before the accident, Palaski began bicycling as a hobby. He gradually became more involved in bicycling, taking 25-mile bike rides every two weeks. As his interest deepened, he took regular 60-mile bike rides around Mt. Diablo, usually with one or two companions.
Palaski bike-commuted 10 miles to work each day because he considered it good training. He participated in two organized long-distance group rides, one from San Francisco to San Luis Obispo, and another from Sausalito through San Francisco. However, he never participated in bike races. In 1994, Palaski was diagnosed with Hodgkins disease, which later went into remission after treatment. During this treatment, he did not go on any long rides, but still did his daily bike commute.
In January 2003, Palaski was diagnosed with Parkinsons disease. That shocked him, but he made no lifestyle changes. Even after the diagnosis, Palaski would ride long distances around Mt. Diablo with other riders, to train for the big Yosemite rides.
It was Palaskis goal to do a bike ride from his home in Clayton, California to Yosemite National Park each year. Palaski made all of his Yosemite rides, including the 2003 ride, because he loved to ride, and he liked the physical challenge. He had done the Yosemite ride three or four times before the latest 2003 ride. Palaski did not have a set time on when he did his ride; he has done it in September, May and June. He also did not have a goal in terms of getting to a certain point within a certain time frame. On June 21, 2003, Palaski was not racing against himself on this trip and was not attempting to beat any other persons time or any of his prior times in reaching Yosemite. He also traveled by truck for 20 miles during the steepest part of the trip.
Before the first Yosemite ride, Palaski and his wife drove various public highway routes to select the best and safest route to Yosemite. Part of the selection criteria included whether there were bike lanes, the amount of traffic, and the time of day when traffic would be worst. Palaski planned to bike during the night to avoid traffic on the narrow roads. Once Palaski and his wife selected the bike route, they followed the route on each Yosemite ride. The route included some bike lanes, but no bike paths.
On the 2003 trip, Palaski left from Clayton, California at 11:00 p.m. on the night of June 19, 2003 to begin his ride. He had a special bike light on his helmet and a flashlight strapped to the bike, and a vest with blinking red lights for riding at night. Palaskis wife and grandson followed the next morning. They caught up with him about 20 miles west of Coulterville. Palaski told his wife that he was tired. Palaski then rode in the truck for the remainder of the way into Coulterville. Palaski had lunch and dinner in Coulterville. He left the hotel the next morning at between 6:00 a.m. to 6:30 a.m. His wife and his grandson caught up with him before he reached Highway 120. He had a sandwich and some Gatorade. His wife and grandson then drove ahead and waited for him about a mile beyond the accident site.
Two percipient witnesses testified about the accident. They were traveling in the same direction (eastbound) that Palaski was traveling. One percipient witness was a passenger in an eastbound vehicle. He testified that his vehicle was descending down the hill towards the entrance of the bridge when he saw Palaski on his bicycle about a third of the way down the bridge. They passed Palaski and crossed the bridge. Palaski was coasting straight, not pedaling, and was accelerating.
The other percipient witness testified that he was descending the hill when he saw Palaski near the entrance to the bridge. Palaski was coasting in a straight line at about 20 miles per hour, and not pedaling the bike. After the witness safely passed Palaski, he saw in his rear-view mirror that Palaski "was close to the edge of the bridge," and that his bikes front wheel began wobbling left and right — "the way it would when youre riding a bicycle very slowly and its hard to keep the tires straight" — after which Palaski and his bike went over the rail. Palaski had acquired the red Trek 7900 bicycle that he rode on the accident date about seven years before his death. On June 21, 2003, it was configured for road riding with pedals to which the cleats on the bottom of his bike shoes were attached.
STATEMENT OF THE CASE
On May 27, 2004, Palaskis wife and his surviving adult children filed a wrongful death action seeking to hold the State of California liable. Their complaint alleged that the State of California was liable under Government Code, section 835, for creating a dangerous condition of public property of which it had notice and failed to protect against, due to the conditions present on the Highway 120 bridge, Bridge No. 32-35, on June 6, 2003, when Palaski fell to his death from it.
All further citations are from the Government Code, unless otherwise stated.
On January 19, 2005, the State moved for summary judgment on three grounds, including that the wrongful death action was defeated by the doctrine of primary assumption of risk. In support, the State filed several declarations, including that of Richard S. Knapp, a CalTrans engineer and bicycling enthusiast with over 30 years of biking experience.
Knapp traveled the route Palaski took from Clayton to the bridge, as described by Palaskis wife in her deposition. The Knapp declaration stated that the recreational, long-distance bicycling of the type Palaski was engaged in "requires skill, conditioning, fitness and physical exertion." According to Knapp, the inherent risks or dangers of such bicycling included: "(1) the risk of being interfered with by a motor vehicle, (2) the risk of flat tires, (3) the risk of wind blow back created by truck traffic and (4) the risk of dehydration or physical exhaustion. All of these risks can result in a fall or an accident and personal injury to the bicyclist." Knapp also stated that encountering hazardous road conditions is also an inherent and common occurrence of recreational, long distance bicycling. These hazardous road conditions include: "(1) motor vehicle traffic, including large trucks; (2) uneven pavement surfaces, including ruts, pavement edge drop-offs, pot holes, humps, bumps and pavement and expansion joints; (3) bridges with low rails and no `grab rail; (4) slippery pavement surfaces due to such conditions as water, debris, sand and gravel; (5) narrow paved shoulders (less than 2 feet) and no paved shoulders; (6) steep sustained grades; (7) sharp curves with limited sight distance; and (8) narrow motor vehicle traffic lanes with narrow or no shoulders."
In opposition to the summary judgment based upon the primary assumption of risk doctrine, plaintiffs argued that: (1) solo bicycling on a paved highway is not a sport; (2) the State owed a duty to every user of the highway, including Palaski, to maintain a safe highway, similar to the duty that the owner of a venue has to not increase the inherent risks of the sport; and (3) the public policy encouraging the use of bicycles on public highways prohibits the application of the primary assumption of risk doctrine in this case. Plaintiffs also disputed the Knapp declaration as irrelevant and without foundation given that there was no evidence that Palaski encountered the hazardous road conditions identified by the Knapp declaration as inherent dangers.
The trial court granted summary judgment for the State finding the dangerous conditions Palaski encountered were risks inherent to the sport of solo long-distance bicycle riding such that the primary assumption of risk doctrine was a complete defense as a matter of law. Plaintiffs timely appealed.
DISCUSSION
I.
Standard Of Review
A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiffs cause of action cannot be established, or (2) "that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "A court may grant summary judgment only when the evidence in support of the moving party establishes that there is no issue of fact to be tried." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 547.) We determine de novo whether there is a triable issue of fact and whether the moving party is entitled to judgment. (Mastro v. Petrick (2001) 93 Cal.App.4th 83, 86.)
"A three-step analysis is used in reviewing a motion for summary judgment. [Citations.] First, the appellate court must identify the issue framed by the pleadings. [Citations.] Second, we determine whether the moving party has met its statutory burden of proof. [Citation.] In a case such as this, where the defendant was the moving party, the defendant must have demonstrated through admissible evidence that one or more essential elements of the cause of action cannot be established. [Citations.] Once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence that a triable issue of fact exists as to an essential element of the cause of action. [Citation.] [¶ ] The third and final step is to determine whether the opposing party has demonstrated that a triable issue of fact exists as to the cause of action. [Citation.] In determining whether the nonmoving party, in this case the plaintiff, has demonstrated the existence of a triable issue of fact, we must strictly construe the moving partys evidence, and liberally construe the opposing partys evidence, with any doubt as to the granting of the motion being resolved in favor of the opposing party. [Citation.]" (Renna v. County of Fresno (2000) 78 Cal.App.4th 1, 5.)
Here, the State of California moved for summary judgment on the ground that it owed no duty to Palaski. Thus, the issue framed by the pleadings in this case is whether the State owes a duty of care to Palaski, or whether the State owes no duty because of the primary assumption of risk doctrine.
II.
Primary Assumption Of Risk Doctrine And Section 835
A public entity is liable under section 835 for a persons injuries when property it owns and controls is in a dangerous condition that foreseeably caused the injuries. The States section 835 liability is subject to any defense available to it if it were a private entity. (§ 815, subd. (b).) The existence of a duty of care is an element of plaintiffs case against a public entity for injury caused by an alleged dangerous condition of property. (Lompoc Unified School Dist. v. Superior Court (1993) 20 Cal.App.4th 1688, 1694; Lackner v. North (2006) 135 Cal.App.4th 1188, 1204, fn. 8 ["Analytically, the question of a public entitys immunity from tort liability does not arise until it is determined that the entity owes the plaintiff a duty of care."]) Thus, a defense which negates the duty of care is a potential defense to a section 835 claim.
In Knight, the California Supreme Court held that "[i]n cases involving `primary assumption of risk — where, by virtue of the nature of the activity and the parties relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury — the doctrine continues to operate as a complete bar to the plaintiffs recovery." (Knight, supra, 3 Cal.4th at pp. 314-315.) The Court limited cases involving primary assumption of risk to sports or sport-like activities. (Id. at pp. 315-316.) Thus, absent some recklessness or intentional misconduct, under the primary assumption of risk doctrine, a defendant has no legal duty to protect a plaintiff from injuries arising from risks or dangers inherent to the sport or sport-like activity. (Id. at pp. 315-316.)
Post-Knight, several cases have held that the primary assumption of risk doctrine could bar negligence claims against landowners. (See, e.g., Calhoon v. Lewis (2000) 81 Cal.App.4th 108 (Calhoon) [private landowners not liable for personal injuries arising from a person who fell while skateboarding]; Nemarnik v. Los Angeles Kings Hockey Club (2002) 103 Cal.App.4th 631 [hockey club not liable for failing to protect patron from hockey puck]; ODonoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 [resort not liable for dangerous terrain between ski runs]; Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [resort not liable for failing to pad ski lift tower].)
The doctrine of primary assumption of risk, in the context of the firefighters rule, also has been applied to defeat cases against California public entities. (Farnam v. State of California (2000) 84 Cal.App.4th 1448 [State not liable for harm arising from injury caused by police dog to a police officer during a joint operation between police and highway patrol to apprehend a felon]; City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269 [County not liable to publicly-employed lifeguard for injuries caused by another publicly-employed lifeguard arising from a joint rescue operation].) However, there has been no published California case holding that the primary assumption of risk doctrine, in the sports context, bars claims against the State arising from a dangerous condition of property. The closest case on point is Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64 (Childs).
In Childs, the court held that the primary assumption of risk doctrine did not apply in a case where there was insufficient evidence about how a child used a scooter on a public sidewalk. (Childs, supra, 115 Cal.App.4th at p. 68.) The court stated that "[r]iding a scooter may be subject to the doctrine under some circumstance, but we cannot conclude, as the trial court did, that riding a scooter is a recreational activity subject to the doctrine under all circumstances." (Id. at p. 71.) In reaching that conclusion, the court implied that a public landowner could use the primary assumption of risk doctrine as a complete defense in the circumstances enunciated by Knight, supra, 3 Cal.4th 296, and its progeny.
After reviewing the relevant statutory provisions in the Government Code and the relevant case law deriving from Knight, supra, 3 Cal.4th 296, we conclude that the State, as a public landowner, can assert the primary assumption of risk doctrine as a complete defense to section 835 claims. Whether the State is successful depends upon whether the primary assumption of risk doctrine is applicable.
III.
Applicability of The Primary Assumption Of Risk Doctrine
In Knight, the California Supreme Court held that the primary assumption of risk doctrine is applicable only in cases where the defendant had no legal duty to the plaintiff to protect the plaintiff from the particular danger at issue. (Knight, supra, 3 Cal.4th at p. 314.) "[T]he existence and scope of a defendants duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties general relationship to the activity, and is an issue to be decided by the court, rather than the jury." (Id. at p. 313.)
Accordingly, we analyze de novo the nature of the activity and the parties general relationship to the activity in order to determine whether, "`as a matter of public policy, the defendant should owe [Palaski] a duty of care." (Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 796 (Shannon).)
A. Nature Of The Activity
1. Whether the activity is a sport.
According to the State, the primary assumption of risk doctrine applies because solo long-distance bicycling is a sport. In Shannon, supra, 92 Cal.4th 792, we agreed that "`an activity falls within the meaning of "sport" if the activity 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." (Id. at p. 797 [quoting Record v. Reason (1999) 73 Cal.App.4th 472].) We concluded that "`sport as intended by the Knight court necessarily entails some pitting of physical prowess (be it strength based [i.e., weight lifting], or skill based, [i.e., golf]) against another competitor or against some venue." (Shannon, supra, 92 Cal.App.4th at p. 797.)
We reached this conclusion based upon our analysis of the current case law. We noted that, although the California Supreme Court first applied the primary assumption of risk doctrine to the competitive, team, sporting activity of touch football, the Supreme Court "expanded the rule slightly and applied it to the noncompetitive, nonteam, sporting activity of waterskiing." (Shannon, supra, 92 Cal.App.4th at p. 797, citing Ford v. Gouin (1992) 3 Cal.4th 339 (Ford)). We also found that subsequent cases have applied the doctrine to a variety of sports and activities. (Shannon, supra, 92 Cal.App.4th at p. 797, citing cases.) From these and other relevant cases, we can conclude that "sports" in the legal context of the primary assumption of risk doctrine is different (and broader) than "sports" in the colloquial context and depend on the nature or manner in which the activity is performed. Thus, courts have concluded that sports in the legal sense include activities that may not be traditionally viewed as sports. (See Moser v. Ratinoff (2003) 105 Cal.App.4th 1211 (Moser) [organized, noncompetitive, recreational bicycle riding on public highways]; Calhoon, supra, 81 Cal.App.4th 108 [solo skateboarding on driveway]; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428 [junior lifeguard training on public beach]; Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551, 553 [group sportfishing]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040 [supervised rock climbing]; Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 256 [group river rafting].)
Here, Palaskis solo long-distance bicycling was done for enjoyment, required physical exertion and elements of skill, and involved a challenge containing potential risk. Palaskis wife testified that he did the annual Yosemite trip because he enjoyed biking and the physical challenge. Solo long-distance bicycling requires physical exertion and some element of skill. The Yosemite trip encompassed 156 miles through rugged terrain. Even though Palaski rode in a truck during the steepest parts of the ride, it is undisputed that Palaski had to traverse steep terrains. Palaskis wife testified that he told her that he was tired from the biking. It is also undisputed that some element of skill is required to engage in solo long-distance bicycling, especially in the control of the bicycle and assessing road hazards. Finally, the solo long-distance bicycling at issue involved a challenge containing potential risks. At a minimum, the strenuous bike ride involved the physical challenge of maintaining proper balance and bike control over the course of three days and 156 miles of highways. Failure to meet that challenge could result in injury from falling from the bike or hitting an obstacle.
Furthermore, the solo long-distance bicycling in this case necessarily entailed the pitting of Palaskis physical prowess against the venue of the chosen bike route. Unlike a passenger in a boat simply being used to ride around a lake, Palaski was an active participant in the long-distance bicycling. (Shannon, supra, 92 Cal.App.4th at p. 797.) Moreover, Palaski was not engaged in using the bike as a means of daily transportation. (Moser, supra, 105 Cal.App.4th at p. 1221 [stating that bike-commuting is not covered by the primary assumption of risk doctrine].) Rather, he was engaged in a well-planned, three-day, 156-mile bike ride from his home in the Bay Area to Yosemite. Thus, solo long-distance bicycling of the kind at issue in this case is a sport for the purposes of the primary assumption of risk doctrine.
The Legislatures enactment of section 831.7 does not alter our analysis. In section 831.7, subdivision (b)(3), "`[h]azardous recreational activity" which includes "mountain bicycling" is specifically defined to "not include riding a bicycle on paved pathways, roadways, or sidewalks." We are not aware of any legal authority holding that the enactment of section 831.7 limits the scope of the primary assumption of risk doctrine. (See Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 (Avila) [holding that defendant was not immune under section 831.7, but was immune under the primary assumption of risk doctrine].) Thus, the definition of hazardous recreational activity in section 831.7 does not determine whether a particular activity is a sport for the purposes of the primary assumption of risk doctrine.
The dissent contends that the test of whether an activity is a sport should be clarified to require that the activity should not just be "a challenge containing a potential risk of injury" (dis. opn., post, at p. 4), but rather that it be a challenge containing a potential risk of inherent danger. According to the dissent, "[w]hile this type of bicycle riding involves physical activity and requires some endurance, it does not constitute a sport any more than solo long-distance motorcycle riding, individual running, jogging, or fast walking are sports." (Dis. opn., post, at p. 7.) The reason is that "the inherent potential for danger is nominal." (Dis. opn., post, at p. 6.) Thus, while the biking in this case carries the possibility of injury from falling, that potential for injury is different from the potential for inherent danger required to conclude that the biking activity is a sport. Otherwise, according to the dissent, activities such as bike-commuting, motorcycle riding, running or jogging, which all carry the possibility of injury, would qualify as sports.
The dissents argument mirrors an argument made by the appellate court in Childs. In Childs, the court stated that: "Falling or a comparable mishap is possible in any physical activity but is not necessarily an inherent danger of the activity. The possibility that any person who rides a scooter, bicycle or other wheeled vehicle might be injured by the negligence of another is insufficient to impliedly excuse others from acting with due care to avoid accidents. [Citations.]" (Childs, supra, 115 Cal.App.4th at p. 73).
The proposed clarification of the Record and Shannon test on what constitutes a sporting activity does not assist a court in determining what activity is a sport. We agree that just because an activity includes a risk of injury, it does not necessarily lead to the conclusion that the activity is a sport. (Shannon, supra, 79 Cal.App.4th at p. 798, fn. 3.) However, the corollary is also true: Just because falling is a risk in any physical activity does not mean that an activity that includes an inherent danger of falling is not a sport.
For example, running around your neighborhood may not be a sport, but running in the Olympics in time-trials is clearly a sport. Most people would also consider jogging in Death Valley or running "rim to rim" in the Grand Canyon as sports. Similarly, while solo bike-commuting to work may not be a sport, solo biking on a velodrome in time-trials or among the French Alps during the Tour de France is clearly a sport. Each of these activities has the potential for injury because of falling. But the fact that these activities all share the same potential for injury does not determine which activity is a sport.
Moreover, interpreting the primary assumption of risk doctrine as barring claims based upon other inherent dangers such as collisions between sport participants but not "non-inherent dangers," such as falling, would be contrary to holdings by other courts (see Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 214 ["Falling and thereby being injured or even killed are inherent dangers of skiing."]), and would be logically incoherent. For example, the dissent agrees that the Moser court was correct in concluding that organized group long-distance bicycle riding on public highways is a sport and that the primary assumption of risk doctrine bars a claim by one competitor against another for an injury caused by the collision between the riders. According to the Moser court, the collision caused plaintiff "to fall off his bike and to sustain injuries." (Moser, supra, 105 Cal.App.4th at p. 1216.) Thus, if primary assumption of risk doctrine bars claims based upon collisions and not from falling, then Moser was incorrectly decided as the cause of the injury was the fall off the bike.
Instead of trying to distinguish between "possibility of injury" and "inherent danger," the better approach is to look at the risk of physical injury in the context of the nature of the activity. We followed this same approach when we determined that just because sporting equipment is used during an activity does not mean that the activity is a sport. (Shannon, supra, 92 Cal.App.4th at p. 800-801.) Similarly, here, we need to examine the potential risk of physical injury in the context of the nature of the activity to determine whether the activity is a sport.
Falling from a bike and sustaining injury is a potential risk when bike commuting on a city street at daytime for a short distance. We are not called upon to decide whether such activity is or is not a sport. However, as the nature of the biking activity changes, it is clear that at some point, the biking activity becomes a sport. The change in the nature of the activity is usually tied to an increased risk of physical injury. For example, timed bike rides requires greater exertion and increases physical exhaustion, which could result in lessened bike control and therefore greater risk of falling from the bike. Riding in a crowd increases the risk of falling from the bike because of loss of bike control from collisions or avoidance of collisions. Performing tricks with a bike such as riding on one wheel or bike-jumping also increases the risk of falling from the bike and being injured. Similarly, riding on challenging terrain, which could include bike ramps (as seen in "extreme sports" competition) or mountainous terrain (as in alpine tours), would increase the risk of falling from the bike and sustaining injuries. Finally, biking in harsh environments such as during a storm, or at night, or in Death Valley, would also increase the risk of falling from the bike due to road conditions or increased exhaustion. For some people, it is the very nature of certain biking activities and the physical challenge and increased danger attendant to those activities that draws them to engage in those activities. As our Supreme Court has observed, "[i]n the sports setting, ... conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself." (Knight, supra, 3 Cal.4th at p. 315.) Here, the potential risk of physical injury was increased by the particular type of bicycle ride that Palaski decided to engage in.
We note that the placement of bike ramps may create liability for venue owners if the ramps were placed in unsafe heights or intervals. (See Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 822-823.) However, we caution that what may be unsafe to the public may be considered a normal inherent danger to the bicyclist, in which case there would be no liability. (See Knight, supra, 3 Cal.4th at p. 315 ["In the sports setting, ... conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.")
KANE, J.
I dissent.
In my view, the primary assumption of the risk (PAR) doctrine does not bar a wrongful death claim against defendant State of California (State) arising from solo recreational bicycle riding on a public roadway. I disagree with the majority that solo recreational bicycle riding is a "sport" for PAR purposes. Even if it is a sport, State has not established, as it must under summary judgment law, that the death of plaintiffs decedent, Richard Lewis Palaski, resulted from a risk inherent in solo recreational bicycle riding; moreover, there remain triable issues of fact whether State increased the risks inherent in bicycle riding. I would reverse the summary judgment entered in favor of State.
In Knight v. Jewett (1992) 3 Cal.4th 296, our Supreme Court held the PAR doctrine eliminated any duty of care owed by participants to each other in a touch football game. The court explained that the PAR doctrine precludes the imposition of legal liability arising out of the inherent risks of sporting activity, even if the injury-producing conduct violates the rules of the game or constitutes careless conduct; otherwise, the specter of legal liability "might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in [the] activity." (Id. at p. 319.)
The reasonableness or unreasonableness of the plaintiffs conduct does not determine whether PAR applies. (Knight v. Jewett, supra, 3 Cal.4th at p. 309.) Rather, the nature of the activity and the parties relationship to the activity must be analyzed in order to determine whether the doctrine applies. (Id. at pp. 316-317.) PAR does not apply if the defendant intentionally injures another player, engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport, or increases the risks beyond those inherent in the sport. (Id. at pp. 316, 318.) Whether PAR applies in a given case is a question of law to be decided by the court. (Id. at p. 313.)
The majoritys analysis of the question whether PAR applies to defeat plaintiffs claim against State in this case is flawed for several reasons. It does not correctly analyze States relationship to the activity. It applies PAR in a context that does not serve the purpose of the doctrine, namely, to avoid altering the nature of the sport by deterring vigorous participation in the activity. It erroneously concludes that the circumstances of Mr. Palaskis accident fall within the normal risks inherent in solo recreational bicycle riding. It also fails to recognize that there remain triable issues of material fact as to whether State increased the risks above those inherent in solo recreational bicycle riding.
This is to be contrasted with secondary assumption of the risk (SAR) in which a jury may assess comparative fault against a plaintiff who voluntarily chooses to engage in an unusually risky sport. (Knight v. Jewett, supra, 3 Cal.4th p. 314.)
There is also the question whether existing statutory duties governing States maintenance of public roads override the application, if any, of the PAR doctrine. (Cheong v. Antablin (1997) 16 Cal.4th 1063; Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 74; Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 484-485; Peart v. Ferro (2004) 119 Cal.App.4th 60, 83-84 (conc. opn. of Pollack, J.).) It is not necessary to decide that question in this case in light of the other reasons requiring reversal of the summary judgment.
Palaski decided to ride a mountain bike on a three-day, 156-mile ride, in nighttime and daytime and over challenging terrain, including mountain roads. This endurance biking on mountain roads is extremely different from biking down the street for exercise. This was Palaskis fourth or fifth time doing this type of bicycle ride. Palaski and his wife planned for these rides, including choosing a route and time periods to minimize the hazard of vehicle traffic. He wore special equipment (especially during nighttime biking) and trained for these annual rides. The potential risk of injury to Palaski was from the increased risk of falling from his bike due to exhaustion because of the time and length involved, or from environmental or road conditions encountered during the bike ride. Thus, solo long-distance bicycle riding of the type in which Palaski was engaged on the date of his accident is a sport for the purposes of the primary assumption of risk doctrine.
2. Inherent risks.
Having concluded that the solo long-distance bicycling in this case is a sport, we must determine the risks inherent in that sport. The primary assumption of risk doctrine applies only to those conditions or conduct, risks or dangers that are integral or inherent to the sport. (Knight, supra, 3 Cal.4th at p. 315.) Nevertheless, there are certain conditions or conduct that are not considered inherent risks of the activity. (Moser, supra, 105 Cal.App.4th at pp. 1221-1222.) For example, conduct that is totally outside of the range of ordinary activity involved in a sport is not an inherent risk of that sport. (Ibid.) We may consider expert opinion regarding the risks customarily considered "inherent" to the sport, although expert opinion is not controlling on the ultimate legal question of duty. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017-1018; accord Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 593, fn.4.)
As a matter of common knowledge, losing balance and falling or losing control of a bicycle and crashing into other objects are inherent risks of solo long-distance bicycling. The solo long-distance bicycling in this case also had other inherent risks. Unlike a bicyclist in a controlled environment such as a velodrome, a sports arena designed for track bicycle races, Palaski was biking on highways and mountain roads, following a route which was not limited to bike lanes or bike paths. Due to the nature of the solo long-distance bicycling in this case, additional inherent risks include dangers posed by natural conditions, such as darkness and weather. Other inherent risks of the sport, identified by Richard S. Knapp, a bicycling enthusiast with over 30 years of biking experience, include: "(1) the risk of being interfered with by a motor vehicle, (2) the risk of flat tires, (3) the risk of wind blow back created by truck traffic and (4) the risk of dehydration or physical exhaustion." These conditions might increase the risk and severity of a fall or crash while biking, but that increased danger is integral to the sport of solo long-distance bicycling along the California highways.
Of particular relevance to this case is Knapps expert opinion that encountering hazardous road conditions is also an inherent and common occurrence of recreational, long distance bicycling. These hazardous road conditions include: "(1) motor vehicle traffic, including large trucks; (2) uneven pavement surfaces, including ruts, pavement edge drop-offs, pot holes, humps, bumps and pavement and expansion joints; (3) bridges with low rails and no `grab rail; (4) slippery pavement surfaces due to such conditions as water, debris, sand and gravel; (5) narrow paved shoulders (less than 2 feet) and no paved shoulders; (6) steep sustained grades; (7) sharp curves with limited sight distance; and (8) narrow motor vehicle traffic lanes with narrow or no shoulders." We note that the hazardous road conditions listed by Knapp are road conditions that are normally or ordinarily expected to be encountered on the chosen bike route, which included mountain roads. They are also road conditions easily dealt with by automobiles which are the primary users of the road. Knapps testimony is persuasive, and we are satisfied that the State has met its burden of showing that falling off a bike after encountering hazardous road conditions is an inherent risk of the sport of solo long-distance bicycling on the public highways. We note that plaintiffs objection to the Knapp declaration as irrelevant and without foundation, given that there is no evidence that Palaski encountered these road conditions, does not detract from Knapps expert testimony that encountering hazardous road conditions is an inherent risk of the sport of solo long-distance bicycling on public highways.
The dissent argues that "[r]ecreational bicyclists, like Mr. Palaski, do not anticipate that biking on a public highway carries with it an inherent risk of being hurled over a bridge." (Dis. opn., post, at p. 18.) However, the inherent risk of the biking activity here was not "being hurled over a bridge," (ibid.) but rather, the inherent risk was falling from a bike because of road conditions that are commonly encountered on mountain roads. It was unfortunate that Palaski died because he fell off his bike, but it is not the consequence of the risk, but the nature of the risk that determines whether the primary assumption of risk doctrine applies. (See Calhoon, supra, 81 Cal.App.4th at p. 116 [the primary assumption of risk doctrine is concerned with inherent risks and whether defendants increased the risk of injury beyond that inherent to the sport, not whether defendants may have increased or failed to reduce the severity of injuries resulting from inherent risks].)
The dissent also contends that we failed to comprehend the distinction between foreseeable risks and inherent risks when we agreed with Knapp that an inherent risk of bicycling on public highways is "the risk of being interfered with by a motor vehicle." The dissent contends that this would mean that the primary assumption of risk doctrine would bar tort actions against negligent motorists. According to the dissent, "[i]t is foreseeable that a bicyclist may be struck by a motor vehicle, but it is not the same thing as saying that an inherent risk of bicycling is being struck by a motor vehicle." (Dis. opn., post, at p. 19.) The dissent is engaging in hyperbole. First, we never concluded that primary assumption of risk doctrine would bar tort actions against negligent motorists. Second, "being interfered with by a motor vehicle" (ibid.) is not the same as "being struck by a motor vehicle." (Dis. opn., post, at p. 6.) For example, the blow back from a large truck, driven safely and within posted speed limits, could interfere with the operation of a bike even if the truck did not make contact with the bike. Third, as we discussed previously, the foreseeable dangers of an activity and the inherent dangers of an activity can be the same thing depending upon the nature of the activity. Here, Palaski chose to bike on roads designed for motor vehicle traffic. He knew that some parts of his bike route had a lot of traffic, so he decided to bike part of the time at night to avoid traffic. Thus, an inherent risk of his bike ride was the risk of being interfered with by motor vehicles. Finally, if the collision between a motorist and a bicyclist occurred in a sporting venue that was accessible to both motorist and bicyclist, and both persons were engaging in a sport, it is possible that the primary assumption of risk doctrine would bar a tort action against the negligent motorist. (See Mastro v. Petrick, supra, 93 Cal.App.4th 86 [primary assumption of risk doctrine barred tort action against snowboarder by skier where snowboarder was pursuing his sport in an appropriate venue].)
Therefore, the State has met its burden of showing that Palaskis fall from a bridge after encountering hazardous road conditions is an inherent risk of the sport he was engaged in. Thus, the burden shifts to appellants to show that there is a triable issue of fact on this element. (Renna v. County of Fresno, supra, 78 Cal.App.4th at p. 5.)
Appellants have not produced any factual evidence on the inherent risks of bicycling, such as expert testimony. Instead, appellants presented declarations by experts that the bridge conditions encountered by Palaski constituted a dangerous condition of public property and the dangerous condition caused Palaskis death. None of these experts testified about the inherent risks of bicycle riding. Further, no expert concluded the hazard encountered here would be a dangerous condition for an automobile.
Appellants also argue that the inherent risks of a sport are only those risks that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation. (Knight, supra, 3 Cal.4th at pp. 318-319.) According to appellants, the inherent risks of the sport in this case do not include encountering dangerous road conditions such as those present on the bridge on the date of Palaskis accident. Appellants contend that the lack of dangerous road conditions would not deter vigorous participation in the sport but would probably encourage participation because cyclists would be confident that the public highways are safe for bicycling. Both the dissent and appellants also argue that the policy behind the primary assumption of risk doctrine — "to avoid imposing a duty which might chill vigorous participation in the [activity- and thereby alter its fundamental nature" (dis. opn., post, at p. 12) — would not be served if we apply the doctrine in this case.
As an initial matter, we note that the Knight Courts discussion on chilling vigorous participation was made in the context of discussing the limits of a sport coparticipants duty of care. (Knight, supra, 3 Cal.4th at p. 296.) We do not believe that the primary assumption of risk doctrine is limited to cases where vigorous participation in a sport would be chilled, especially, where the defendant is not a coparticipant. Nevertheless, we believe that if the primary assumption of risk doctrine is not applied in this case, there would be a chilling effect on the willingness of the State to provide venues for solo long-distance biking and the nature of the sport in this case would be fundamentally altered if encountering dangerous road conditions was not an inherent risk of the sport.
We note that the sport in which Palaski was engaged is not biking in general, but biking over three days, in the nighttime and daytime, and on 156 miles of public highways, including mountain roads. Realistically, the public highways are designed for cars and trucks, and not for bicycles, although bicycles are permitted to use the road. It is also obvious that typical mountain roads are in poorer shape than typical city streets. For example, mountain roads may become littered with leaves and pine cones that fall down or are blown onto the road, or become covered with dirt and gravel that follow waterflows from rainstorms. The dissent and appellants would require that CalTrans maintain all public highways free of debris or road conditions that would foreseeably cause a bicyclist to lose control and fall off his bike, or face the added expense of preparing for and prevailing in a jury trial. This stance carries evident policy consequences.
It is undisputed that CalTrans and local authorities may "by order, ordinance, or resolution ... prohibit or restrict the use of the freeways, expressways, or any portion thereof by pedestrians, bicycles or other nonmotorized traffic" by posting notice "upon any freeway or expressway and the approaches thereto." (Veh. Code, § 21960, subds. (a) & (b), italics added.) It is also undisputed that CalTrans could seek legislation to preclude the use of bicycles on all public highways. If CalTrans would have to prepare for a jury trial every time there is an accident because of debris or other conditions of a road that would affect bicycles only, it is likely that CalTrans would seek to bar the use of public highways for bicycling although it is probable that CalTrans would not enforce such a ban, but merely use it as a defense to liability. Thus, this would reduce the venues available for people who want to bike for three days over 156 miles of public highways.
Ensuring that mountain roads are free of debris and other dangerous conditions would also alter the fundamental nature of the sport in this case. Palaski chose to bike on public highways at night and during the day, on a route that does not consist solely, or mostly, of bike lanes. By engaging in this activity, he assumed the risk that he would encounter dangerous road conditions that are commonly found on mountain roads, such as those identified in the Knapp declaration, or a risk such as the lack of lighting on the highways sufficient for safe nighttime bicycling. (Compare ODonoghue v. Bear Mountain Ski Resort, supra, 30 Cal.App.4th at p. 193 ["Skiers can expect to encounter moguls on a ski run [citation], trees bordering a ski run [citation], snow-covered stumps [citation], and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing. [Citation.]"]) We note that the dangerous road conditions encountered on the bike route chosen by Palaski likely would differ from the dangerous road conditions that might be encountered on city roads. Thus, encountering a failed asphaltic joint covered by sand might not be an inherent risk of biking on city roads, but it is an inherent risk of solo long-distance biking on the route chosen by Palaski. Whether it was reasonable or unreasonable for Palaski to engage in the Yosemite bike ride in the face of such inherent risks is not an issue we need to resolve to determine that the primary assumption of risk doctrine applies. (Knight, supra, 3 Cal.4th at p. 309.)
Because appellants did not produce any factual evidence in the inherent risks of the sport of solo long-distance bicycling on public highways, and given that we reject appellants legal argument that encountering dangerous road conditions is not an inherent risk of the sport, we conclude that there is no triable issue of fact on the issue of whether falling from a bike due to the presence of three road conditions is an inherent risk of the sport of solo long-distance bicycling on public highways.
B.
General Relationship Of The Parties To the Sport
Having determined the nature of the activity at issue, we next examine the general relationship of the parties to that activity to determine the scope of the States legal duty to Palaski. Palaskis relationship to the sport is obvious; he engaged in the sport of solo long-distance bicycling on public highways. The States relationship to the sport is less obvious. According to appellants, the State has a relationship akin to that of the private owner of a venue.
In Knight, the California Supreme Court held that private owners of venue have a general duty to not increase the inherent risk of a sport. (Knight, supra, 3 Cal.4th at pp. 315-316.) According to the Court, even if a defendant has "no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that [a defendant] generally do[es] have the duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Ibid.)
Appellants argue that the State increased the risks over and above those inherent in the sport of solo bicycling because the State: (1) joined the bridge to the rest of the road with asphalt, but failed to scrape the mound that occurred in the asphaltic joint, (2) applied the sand to the road but failed to sweep it until two months later, and (3) did not build the bridge rail to design specifications. Thus, appellants contend that these conditions, which were created by the State, increased the risks to Palaski over and above those inherent in the sport. We disagree.
It is an inherent risk of riding a bicycle in mountainous terrain that there will be sand and other debris on the roadway which will increase significantly the risk of encountering unstable terrain that can cause a bike to slip or lose traction. That is the risk that Palaski encountered in this case. The consequence is indeed unfortunate but it is not the consequence that dictates the conclusion, it is the nature of the risk. Thus, even if the State had a general legal duty akin to that of a private owner of a venue, the State did not have a legal duty to eliminate the risk of falling from a bike to his death or to protect Palaski from falling from the bridge. (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 ["If a risk is inherent in a sport, the fact that a defendant had a feasible means to remedy the danger does not impose a duty to do so."])
In any case, the Knight exception to the primary assumption of risk doctrine permitting liability for one who has increased the risks beyond those inherent in the sport would not apply here because that exception "was made in the context of [the courts] discussion of the duty owed by parties who have some organized relationship with each other and to a sporting activity.... " (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 481 (Parsons).) "[H]owever, when, ... parties have no such (or similar) relationship — and instead are independent actors, separately pursuing their own activities — a defendant generally has no duty to avoid increasing the risks inherent in a plaintiffs activity." (Id. at p. 482) Thus, when no such "relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty upon the defendant to avoid increasing the risk of harm over that posed by the activity in which the plaintiff happens to be engaged, the defendant has no such duty." (Id. at p. 483.)
Here, the State does not have an "organized relationship" to the sport, as that term has been used in the court cases. For example, the State is not a co-participant in the sport, an instructor for the sport, a seller of sporting equipment, or an enterprise that sponsors solo long-distance bicycling. Rather, the only relationship that the State has to the sport of solo long-distance bicycling on public highways is that Palaski chose to ride on public highways, and the State is charged with maintaining the public highways reasonably free from dangerous conditions that foreseeably could cause injury.
This case is thus akin to that of Calhoon, supra. In Calhoon, the court applied the reasoning of Parsons to hold that residential property owners, who did not have an organized relationship to the sport, did not have a duty to refrain from increasing the risks of skateboarding on their property. (Calhoon, supra, 81 Cal.App.4th at pp. 116-117.) Thus, the private landowners, who have a general duty to refrain from negligently injuring others, (Civ. Code, § 1714), were immune under the primary assumption of risk doctrine for injuries arising out of the fall of a skateboarder onto a metal pipe in a planter on the driveway. (Calhoon, supra, 81 Cal.App.4th at pp. 117-118.) The same reasoning would apply to protect a public landowner, such as the State, who has a more restrictive duty of care to the general public than a private landowner has.
DISPOSITION
The judgment is affirmed. Costs to Respondent.
I Concur:
Harris, J.
Summary Judgment Evidence
A defendant moving for summary judgment must show either that one or more elements of the plaintiffs cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) In considering the merits of the motion, the moving partys evidence must be strictly construed, while the opposing partys evidence must be liberally construed. Any doubt as to the granting of the motion must be resolved in favor of the opposing party. (Renna v. County of Fresno (2000) 78 Cal.App.4th 1, 5.) The appellate court reviews a summary judgment de novo. (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81; Mastro v. Petrick (2001) 93 Cal.App.4th 83, 86.)
On June 21, 2003, Mr. Palaski, age 65, was tragically killed while riding his bicycle on State Highway 120 in Tuolumne County. He lost control of his bicycle as he entered a bridge. The bike struck the bridge rail and he fell over the rail more than 65 feet to his death.
According to plaintiffs version of the accident, which is supported by eyewitness accounts, physical evidence, and expert opinion, Mr. Palaski was pedaling between 15 to 25 miles per hour when he rode onto the west end of bridge No. 32-35 that crosses the south fork of the Tuolumne River on Highway 120. An asphaltic joint had failed and a mound or bump had formed in the south shoulder of the west end of the bridge. The bump was between one and one-half and two inches in height. While this asphaltic joint extended across the roadway, the bump height was insignificant in the driving lanes but significant on the shoulder. On April 11, 2003, more than two months before the accident, State had spread sand on the roadway. On the date of the accident, the sand covered the one and a half to two-inch asphaltic joint bump. The roadway appeared to be flat when it was not.
The majority opinion recites that the right shoulder of the bridge was covered by sand estimated to be one-quarter to one inch thick. That statement fails to acknowledge evidence submitted by plaintiffs experts who opined that the sand was as high as the mound itself. For purposes of ruling on a summary judgment motion, plaintiffs opposition evidence is to be liberally construed and any doubts as to the merits of the motion are to be resolved in favor of the opposing party. (Renna v. County of Fresno, supra, 78 Cal.App.4th at p. 5.)
The bump was likely unnoticeable to an approaching bicyclist because the sand covered it, the road appeared flat, there was no significant raised bump in the travel lanes, and there was a curve to the left on the approach to the bridge. The sand was likely unnoticeable to Mr. Palaski as he approached the bridge because the shoulder of the bridge was discolored due to winter maintenance operations conducted by State. According to plaintiffs evidence and expert opinions, Mr. Palaski died because his bicycle lost control when it encountered sand, struck the sand-covered bump, and then contacted a bridge rail that was dangerously low. The combination of these conditions resulted in a loss of control of the bicycle and caused Mr. Palaskis body to be thrown over the bridge rail to his death.
Plaintiffs introduced additional evidence that it was the practice of the California Department of Transportation (CalTrans) to remove sand trapped on the roadway as soon as possible after it was no longer needed. CalTrans had placed sand on the shoulder of the bridge on April 11, 2003. It was aware that there was a bump on the shoulder since April 2003. The sand was not removed until July 2003. States design specification for a bridge rail called for a minimum height of 32 inches. The actual height of the rail at the time of the accident was approximately 30 inches. The design specifications required the asphaltic joint to be flush or level with the roadway surface. A 2001 bridge inspection report noted that the joint in this area was beginning to "mound." The risk of falling over the bridge rail due to a loss of control caused by the sand, the bump, or a combination of both, posed a substantial risk of injury and created a dangerous condition on the shoulder of the roadway on the bridge.
Does the PAR doctrine apply to solo recreational bicycle riding in an action against State? The answer depends on an analysis of the nature of the activity itself and the relationship between the activity and the parties. (Knight v. Jewett, supra, 3 Cal.4th at pp. 316-317; Kahn v East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.) Even if it is determined that PAR otherwise applies, separate consideration must be given to whether the plaintiffs death resulted from a risk inherent in the activity or from a risk that was increased beyond that inherent in the activity.
Nature of the Activity
An activity done for enjoyment or thrill that requires physical exertion and includes elements of skill and a challenge containing a potential risk of injury generally qualifies as the kind of sporting activity contemplated by PAR. (Record v. Reason (1999) 73 Cal.App.4th 472, 482.) There must be a potential for danger inherent in the activity. (Knight v. Jewett, supra, 3 Cal.4th at p. 311; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328.)
Examples of sporting activities determined to be covered by PAR include baseball, water skiing, snow skiing, golf, tubing behind a motorboat, ice skating, river rafting, judo, wrestling, lifeguard training, football practice drill, and rock climbing. (See Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1220-1221.) In concluding that those activities were covered by PAR, the courts scrutinized the physical demands, skill required and injury risks of the particular activity to determine whether it met the threshold definition of "sport." Next, the court analyzed the relationship between the activity and the parties to determine whether allowing the suit to go forward would deter its vigorous participation or alter its fundamental nature. Finally, the court confirmed that the injury resulted from a risk that was inherent in the sport. Only when all three criteria were met did the court apply the PAR doctrine to bar the claim.
PAR has been extended to noncompetitive activities and to activities that do not meet the common understanding of "sport." In Ford v. Gouin (1992) 3 Cal.4th 339, a water-skier sued his boat driver for injuries suffered when the plaintiffs head was struck by a tree limb that extended over water. Summary judgment for the defendant was affirmed under PAR even though the accident did not result from an activity involving competition. PAR also applies to job-related activities falling within the "firefighters rule." (Knight v. Jewett, supra, 3 Cal.4th p. 309, fn. 5.) In Cohen v. McIntyre (1993) 16 Cal.App.4th 650, summary judgment was affirmed in favor of the defendant dog owner in an action brought by a veterinarian who was bitten by the dog at his office. Relying on the nature of the activity and the relationship of the defendant to the plaintiff, the court held that no duty of care was owed by the pet owner to the veterinarian. (Id. at p. 655.) In each of these cases, the same questions were asked and answered as those posed in a traditional sports activity: Did the activity encompass the attributes one normally associates with sports (skill, challenge, physical demands, risk of danger/injury)? If so, based on the relationship between the activity and the parties in each particular case, would the purpose of PAR (to preserve the fundamental nature of the activity) be served by application of PAR? And finally, was the injury one that results from a risk inherent in the activity?
On the other hand, there have been numerous cases in which courts have determined that PAR does not apply because (1) the activity is not a sport, (2) the relationship between the activity and the parties is such that the aim of the PAR doctrine would not be furthered by applying it in a particular instance, or (3) the injury did not result from a risk inherent in the activity.
Examples of activities determined not to be sports include riding as a boat passenger (Shannon v. Rhodes (2001) 92 Cal.App.4th 792), recreational dancing (Bush v. Parents Without Partner, supra, 17 Cal.App.4th 322), and scooter riding (Childs v. County of Santa Barbara, supra, 115 Cal.App.4th 64). In Shannon, the court held that merely riding as a boating passenger does not invoke PAR because passenger boat riding does not involve any physical prowess or stamina, present any athletic challenge, require any skill, or pose any inherent potential for danger. (Shannon, supra, at p. 800.) In Bush, the court held that recreational dancing is not a sport because it is not a sufficiently dangerous activity. (Bush, supra, at p. 328.) In Childs, a child injured while riding a scooter on a sidewalk sued the county. Summary judgment for the defendant under PAR was reversed because the court held the evidence did not establish that scooter riding was a sporting activity as a matter of law. (Childs, supra, at pp. 70-71.)
The majority concludes that solo recreational bicycle riding is a sport embraced by the PAR doctrine. I disagree. Although this activity requires some degree of stamina, skill, and agility, the inherent potential for danger is nominal. The most obvious inherent risk attendant to solo recreational bicycle riding is falling off the bike—unless one includes the risk of being struck by a motor vehicle. I do not consider the risk of being struck by a motor vehicle to be an inherent risk of solo recreational bicycle riding. (Moser v. Ratinoff, supra, 105 Cal.App.4th at p. 1223, fn. 6 [traffic-related risks of automobile negligence not considered inherent in bicycle race activity].) A foreseeable risk of an activity is not necessarily the same as an inherent risk. While being struck by a motor vehicle is foreseeable, it is not a risk that is integral to bicycle riding. Just as it is foreseeable that a skier may be intoxicated, being injured by an intoxicated skier is not an inherent risk of snow skiing. To put it another way, while it is inherent in the sport of snow skiing that skiers may collide, an injury caused by an intoxicated skier is not the kind of injury that inheres in the sport of snow skiing. (Freeman v. Hale (1994) 30 Cal.App.4th 1388.)
The bicycle riding engaged in by Mr. Palaski did not involve a race against competitors or a clock. There were no coparticipants. While this type of bicycle riding involves physical activity and requires some endurance, it does not constitute a sport any more than solo long-distance motorcycle riding, individual running, jogging, or fast walking are sports. These other activities require physical stamina and some skill, but are more analogous to recreational dancing (Bush v. Parents Without Partners, supra, 17 Cal.App.4th 322) than they are to snow skiing, water skiing, baseball, wrestling, football, and rock climbing to name a few in which the activity itself carries a real risk of danger and injury. What about those who commute to work on a bicycle for exercise? Depending upon the distance and terrain, why would that not be considered a sport? The line between sporting activity covered by PAR and recreational activity not covered by PAR has to be drawn somewhere and I would draw it here.
It is true that solo bicycling carries an inherent risk that the rider will fall to the ground because, for example, a bicycle tire suddenly deflates or the bicycle strikes a rock on the roadway. Such a fall could result in some injury. The same can be said of a bicyclist who is simply commuting to work. It could also be said of a motorcyclist who is traveling for either recreational purposes or as a mode of transportation. Runners and joggers can fall and injure themselves because of a misstep, slippery surface, or uneven surface. If any of these activities qualifies as a sport within the PAR doctrine, then they all do. Recreational dancing would likewise qualify. Just as slipping and falling on a dance floor is foreseeable, but not an inherent risk of dancing (Bush v. Parents Without Partners, supra, 17 Cal.App.4th 322), I conclude the same about falling off a bicycle or tripping while running or jogging. It is not enough that these activities carry the possibility of injury; there must be some real risk of potential danger that inheres in the sport itself. (Ibid.)
In Moser v. Ratinoff, supra, 105 Cal.App.4th 1211, the plaintiff participated along with hundreds of other bicyclists in an organized, long-distance (200-mile) bicycle ride on public highways. The plaintiff sued the defendant, another bicyclist, who had swerved into the plaintiff, causing him to crash and suffer injuries. The court first analyzed the nature of the activity and applied the Record definition of "sport," concluding that the "organized, long-distance, group bicycle ride qualifies as a `sport" for PAR purposes. (Moser v. Ratinoff, supra, p. 1221.) The court also held that this group activity posed an inherent risk of serious injury that could result from one bicyclist colliding with another during the group ride. (Id. at p. 1222.) In analyzing the relationship between the activity and the parties, the court noted that PAR was necessary to prevent organized bike rides from being "adversely affected." (Ibid.) Although the court did not elaborate on what it meant by "adversely affected," it is evident that if bicyclists can sue each other for injuries occurring during a group bike ride, it could discourage bicyclists from participating in such events, or could alter the way in which the group ride is designed in order to minimize collisions. The court concluded that the chance one bicyclist might collide with another bicyclist was a risk inherent in the activity. (Ibid.) Finally, the court expressed no opinion as to whether other forms of recreational bicycle riding would fall within the PAR doctrine. (Id. at p. 1221, fn. 4.)
I do agree that bicycle riding with hundreds of competitors in an organized event is a sport within the meaning of PAR and bars a claim by one competitor against the other for an injury caused by one rider who collides with another. (Moser v. Ratinoff, supra, 105 Cal.App.4th 1211.) This is to be distinguished from the circumstances of this case in which there was no organized event, no other competitors or participants, no venue designed for this specific activity, and the named defendant is the property owner, not a coparticipant.
Relationship between State and the activity
Even if solo recreational bicycle riding qualifies as a sport within the meaning of the PAR doctrine, it does not lead to the conclusion that plaintiffs action against State is barred under that doctrine. PAR does not "grant unbridled legal immunity to all defendants participating in sporting activity." (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827.) The nature of a defendants duty to the plaintiff in a sports context depends not only on the nature of the sport itself, but also on the defendants role in or relationship to the sport. (Knight v. Jewett, supra, 3 Cal.4th at p. 317.) The nature of the applicable duty of care varies with the role of the defendant whose conduct is at issue in a given case. (Id. at p. 318; Kahn v East Side Union High School Dist., supra, 31 Cal.4th at p. 1004.) The majority opinion focuses only on the nature of the activity. It concludes that solo recreational bicycle riding is a sport and from that premise holds that PAR applies to bar plaintiffs action against State. The opinion fails to examine States relationship to the activity.
There are numerous cases rejecting the application of PAR because the relationship between the defendant and the activity was such that the policy considerations underlying the doctrine would not be served. The objects to be served by the PAR doctrine are to avoid chilling vigorous participation in the sport and to avoid altering the nature of the sport. (Kahn v East Side Union High School Dist., supra, 31 Cal.4th at p. 1011; Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751-752; Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 266.)
The PAR doctrine may, consistent with its underlying purpose, characterize an activity as a sport and bar recovery against a coparticipant but allow recovery against a property owner. For example, PAR may bar a tort action against a golfer but not against the golf course owner. (Dilger v. Moyles (1997) 54 Cal.App.4th 1452; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127.) PAR may bar a tort action against a competitor horse rider, but not against the stables owner. (Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 822-823.)
The relationship between the defendant and the activity may determine whether the doctrine applies or not. This is so because the underlying policy considerations for the doctrine may or may not be served depending on who the defendant is and what its relationship is to the activity. The relationship must be analyzed with this question in mind: If the plaintiff is allowed to prosecute the claim against the defendant, will vigorous participation in the sport be chilled or will the fundamental nature of the sport be altered? If the answer is yes, then PAR applies; if the answer is no, PAR does not apply.
In assessing the fundamental nature of the sport, the court must evaluate the risks that are inherent in the sport. For example, while PAR bars an action against a golfer who hit the plaintiff with his errant shot (Dilger v. Moyles, supra, 54 Cal.App.4th 1452), it does not bar an action against the golf club owner for a dangerous design of the golf course layout (Morgan v. Fuji Country USA, Inc., supra, 34 Cal.App.4th 127 [while PAR does not apply, SAR may apply against golf club owner]). Like a baseball stadium owner and ski resort owner who owe duties of care to their users, a golf course owner owes a duty to provide a reasonably safe golf course. Enforcing that duty does not pose the risk of altering the fundamental nature of the game of golf anymore than requiring a ski resort to maintain its towropes in a safe condition jeopardizes the fundamental nature of the sport of snow skiing. (Morgan v. Fuji Country USA, Inc., supra, at p. 134; Knight v. Jewett, supra, 3 Cal.4th at p. 316.)
PAR is an exception to the general rule that a breach of a duty of care may create legal liability to another. (Knight v. Jewett, supra, 3 Cal.4th at p. 315.) This exception should not deprive the plaintiff of a right to litigate a claim for damages unless the policy considerations for the doctrine apply to the factual setting. In Knight, the court distinguished a duty to remove moguls from a ski run from a duty to maintain towropes in a safe condition. (Id. at p. 316.) Moguls are an integral part of the thrill and challenge of snow skiing. Imposing a duty on a ski resort to remove moguls would alter the fundamental nature of the sport. Thus, PAR bars an action against a ski resort for negligence in failing to remove moguls. On the other hand, a ski resort does owe a duty of due care to maintain its towropes in a safe condition because dangerous towropes are not a risk inherent in the sport. Imposing a duty to maintain them will not alter the nature of the sport or deter participation in the sport; actually, imposing a duty to maintain the towropes would likely have the opposite effect of encouraging, rather than discouraging, participation in the sport. So, while snow skiing may qualify as a sport within the meaning of PAR in some circumstances, it does not necessarily follow that any action by an injured skier against anyone is barred by PAR.
In Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, a marathon runner sued the organizers of a marathon race for injuries he suffered as a result of a grand mal seizure a few hours after he ran the race which he alleged was caused by his inability to consume adequate amounts of water during the race. The trial court granted summary judgment under the PAR doctrine. The Court of Appeal reversed, holding that a race organizer that stages a marathon has a duty to organize and conduct a reasonably safe event. This duty requires it to "`minimize the risks without altering the nature of the sport." (Id. at p. 179, italics added, quoting Knight v. Jewett, supra, 3 Cal.4th at p. 317.) The court reasoned that this duty included the obligation to minimize the risks of dehydration for its participants and concluded that such steps are reasonable and "do not alter the nature of the sport." (Saffro, at p. 179.)
In Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th 746, a baseball player who injured his arm while trying out as a pitcher brought an action for negligence against the team based on the defendants having given him permission to throw another pitch after he told team personnel that his arm had "popped." (Id. at p. 750.) The trial court granted summary judgment for the defendants under PAR and the Court of Appeal reversed. The court noted that the overriding consideration in the application of PAR is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature. The court held that imposing a legal duty on the defendants would protect participants from aggravating an existing injury and "would not unduly burden either [the] defendants or injured players." (Wattenbarger v. Cincinnati Reds, Inc., supra, at p. 756.) Since the rationale for PAR would not be served by barring the action, it was held not to be applicable.
In Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, a skier brought an action against a resort for injuries received when he crossed a ski run and struck a steel directional signpost. The trial court granted summary judgment under PAR but the Court of Appeal reversed. The court did not dispute that directional signs were necessary to a ski area but explained that when putting signs in a ski run, the resort has a duty to mark the signs so they are plainly visible from all angles to skiers; otherwise "the ski area, by an affirmative act, significantly increases the risk of harm without enhancing the sport." (Id. at p. 1317.) The ski resort contended that the signpost was a risk inherent in skiing and that vigorous participation in the sport would be chilled by imposing a duty of care regarding the sign. The court rejected the argument, noting that the skiing cases cited by the defendant either involved an injury caused by a natural feature of the terrain or a huge fabricated object plainly visible to skiers. Evidence was presented indicating that the sign post was virtually invisible to skiers. The court noted that imposing a duty of care on the ski resort to make the sign adequately visible would have no deleterious effect on the sport of skiing. (Van Dyke v. S.K.I. Ltd., supra, at pp. 1315-1317.) Accordingly, it was error for the court to grant summary judgment under PAR.
The court noted that whether SAR would bar any recovery would be a question of fact reserved for trial. (Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th at p. 1318, citing Knight v. Jewett, supra, 3 Cal.4th at pp. 314-315.)
In Childs v. County of Santa Barbara, supra, 115 Cal.App.4th 64, the court reversed a summary judgment granted in favor of the county, holding that PAR did not apply to a tort action filed by a child injured while riding her scooter over an uneven section of the sidewalk. The court first noted that the record did not establish scooter riding as a sport as a matter of law. Then, citing Knight v. Jewett, the court held that applying the PAR doctrine would not advance the objective of the doctrine to protect sports-related activities from the chilling effect of liability for injuries caused by inherent risks in the activity. "To the contrary, it might chill the riding of scooters and other wheeled toys, a result which would not be consistent with the purpose of the doctrine. (See Knight, supra, 3 Cal.4th at pp. 318-320.)" (Childs v. County of Santa Barbara, supra, at p. 71.)
In the instant case, State was not a competitor bicyclist or a coparticipant in the bicycling activity. It was not the organizer of a bicycle race. It was the owner of the venue where the accident occurred. The state is obligated by statute to avoid maintaining public roadways in a dangerous condition. (Gov. Code, § 835.) This obligation is imposed to protect all users of the roadway, including motorists and bicyclists. Requiring State to fulfill these duties would not discourage vigorous participation in solo bicycle riding nor would it alter the fundamental nature of recreational bicycling. In fact, holding State to its statutory obligations to maintain roadways in a safe condition would tend to have the opposite effect, that is, to encourage the activity, because, presumably, the safer the road conditions, the more likely bicyclists would consider using the roadways to bicycle. While applying the PAR doctrine in a suit against a competitor bicyclist would serve the doctrines objectives (Moser v. Ratinoff, supra, 105 Cal.App.4th 1211), those objectives would not be served by applying PAR here in an action against State.
Just as the PAR doctrine does not eliminate a ski resorts duty to maintain towropes in a safe condition, a ski resorts duty to safely place directional signs, a marathon race organizers duty to conduct a reasonably safe event, and a baseball teams duty to protect its players from certain injuries, the PAR doctrine does not immunize State from meeting its statutory duties to avoid maintaining public property in a dangerous condition.
I express no view on whether State did or did not fulfill its statutory duties in this case. That is for the jury to determine.
State maintains that it has no duty to keep its highways safe for bicyclists, but it does have a duty to keep its highways safe for motorists. That argument makes no sense. There is no public policy or sound reason for making such a distinction. Applying the PAR doctrine in this case would not even serve the stated objective of the doctrine.
State makes the argument that if PAR is not applied here, the state might outlaw bicycle riding on it roads and thereby reduce the available venues on which to bicycle. The argument is completely without merit.
First, there is nothing in this record to support such an argument. No evidence was presented to substantiate this contention. The argument is self-serving and speculative.
Second, it is disingenuous. In 1992, the California Supreme Court adopted the PAR doctrine. (Knight v. Jewett, supra, 3 Cal.4th 296.) Before Knight was decided, PAR was not recognized in California law as barring actions brought by bicyclists against the state. Before 1992, a recreational bicyclist could sue the state for injuries caused by a dangerous condition of public property. If this court decided not to apply PAR to solo recreational bicycle riding, the states incentive to outlaw bicycle riding on public roadways would be the same as it was before Knight was decided. However, the state did not outlaw bicycle riding before Knight was decided. There is nothing in this record to support the view that it would do so now.
Third, as already mentioned, merely requiring State to perform its statutory duties to maintain public roads in a safe condition will not alter the nature of recreational bicycle riding nor will it discourage active participation by bicyclists. This is not a case where the nature of recreational bicycling activity will likely be altered if plaintiffs lawsuit against State is allowed to proceed to trial. Requiring State to do what it is already bound to do will not alter bicycle riding activity. The fundamental nature of solo long-distance recreational bicycling will not be altered if State is merely required to avoid maintaining its public highways in a dangerous condition. There is nothing in this record to support the view that requiring State to perform its statutory duties will deter bicycling; if it has any effect, it will enhance vigorous participation because it will tend to discourage State from creating hazardous road conditions.
Fourth, the argument that the state will outlaw bicycle riding on its roads is not a reason to apply PAR. If that were true, then PAR should be applied in all sporting activities to immunize all property owners sued for injuries occurring during a sporting activity on their property. The argument could always be made that allowing a property owner to be sued could result in the golf course, baseball stadium or ski resort being closed down. But that argument has never justified an all-inclusive application of the PAR doctrine. In fact, there are many cases (some already cited above) in which property owners and sporting event organizers have not been immunized by the PAR doctrine, even though the same argument could be made, namely, that by allowing these suits to go to trial there is a risk that the owners will no longer make their venues available for sporting activity.
Fifth, the states duties to maintain public highways do not disappear if bicycling is outlawed. The state is still required to maintain these roads for motorists and other users. The state has not explained how outlawing bicycle riding would significantly reduce its duties to maintain the roads in a reasonable safe condition. Unless the elimination of suits brought by bicyclists would significantly alleviate States obligation to maintain public roads, the claimed incentive of State to outlaw bicycling on public roads does not exist.
States assertion that rejecting PAR would adversely affect recreational bicycling activity on public roadways is without merit.
Inherent Risk in the Activity
If the injury causing activity qualifies as a sport, and the relationship between the parties and the activity supports application of the PAR doctrine, the court must confirm that the injury arose from a risk inherent in the activity before the action is barred under PAR. (Knight v. Jewett, supra, 3 Cal.4th 296.) A risk is inherent if it cannot be eliminated without altering the nature of the sport. (Id. at p. 317; Freeman v. Hale, supra, 30 Cal.App.4th at p. 1396 ["conduct is within the range of ordinary activity involved in a sport if that conduct cannot be prohibited without deterring vigorous participation in the sport or otherwise fundamentally altering the nature of the sport"]; Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 800 [recreational boating activity likely to be enhanced not deterred if boat drivers are under duty not to operate boat negligently].)
There are numerous cases in which PAR has been held not to apply because the injury did not result from a risk inherent in the activity. PAR is consistently rejected when it cannot be said that the injury was caused by a risk inherent in the activity or where there is evidence that the defendant increased the risks inherent in the activity. (Hemady v. Long Beach Unified School Dist. (2006) 143 Cal.App.4th 566 [being hit by golf club not an inherent risk in the sport of golf]; Bush v. Parents Without Partners, supra, 17 Cal.App.4th at p. 329 [PAR not applicable because (1) recreational dancing is not a sport and (2) even if it is a sport, defendant increased risk of injury by applying Ivory Snowflakes on the dance floor to make it easier for dancers to slide]; Campbell v. Derylo, supra, 75 Cal.App.4th 823 [summary judgment reversed where court held that triable issue of fact existed as to whether defendants use of a snowboard, unequipped with a retention strap, amounted to conduct outside inherent nature of the sport]; Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184 [reversed summary judgment in favor of defendant operators of motocross bicycle race course in case brought by injured bicyclist alleging defendants negligently designed an expert jump where plaintiff fell; court held the sport does not inherently require jumps which are designed in such a way as to create an "extreme risk of injury"]; Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th at pp. 822-823 [stables owner and instructor had duty to avoid "unreasonable risk of injury"]; Morgan v. Fuji Country USA, Inc., supra, 34 Cal.App.4th 127 [summary judgment in favor of owner and operator of golf course in action brought by plaintiff who was hit by a golf ball reversed; defendant owed duty of care to plaintiff in the design and maintenance of golf course; PAR did not apply to golf course owner although it would have applied to golfer who hit the errant ball]; see also Knight v. Jewett, supra, 3 Cal.4th at p. 317 [distinction between duty of ballplayer to play the game without carelessly throwing a bat and the duty of stadium owner to provide a reasonably safe stadium regarding common hazard of a thrown bat]; Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703 [summary judgment reversed in case brought by college baseball pitcher struck by line drive hit by aluminum bat; triable issue of fact as to whether design and use of bat substantially increased inherent risk plaintiff faced]; Huffman v. City of Poway (2000) 84 Cal.App.4th 975 [PAR did not apply to actor injured falling through trapdoor on stage because there was evidence defendants increased risk beyond those inherent in using open trapdoor on stage]; Gordon v. Havasu Palms Inc. (2001) 93 Cal.App.4th 244 [summary judgment reversed with the court holding that doctrine of PAR was not established against owner of airstrip where private airplane crashed notwithstanding that crashing is risk inherent in flying a plane].)
The majority opinion rests on the premise that it is an inherent risk of solo recreational bicycling for an experienced bicyclist to lose control of his bicycle after striking an unnoticeable, sand-covered mound and to then be thrown over a bridge rail to his death. The proposition that this horrific accident arose from an inherent risk of recreational bicycle riding is astounding. I doubt that any bicyclist—experienced or not—would agree with that assertion. Recreational bicyclists, like Mr. Palaski, do not anticipate that biking on a public highway carries with it an inherent risk of being hurled over a bridge. It may be reasonable to believe that bicyclists anticipate that they can lose control of their bicycle and fall if, for example, they strike a rock or encounter a slippery surface due to rain. However, Mr. Palaski did not fall to the ground. He was not thrown over this bridge rail because of conditions created by Mother Nature. The mound, the sand, and the rail were all created by State.
The majority opinions contention that Mr. Palaskis accident resulted from a risk inherent in solo recreational bicycle riding is premised on the simplistic, but erroneous, notion that because it is inherent in bicycling to encounter potentially dangerous road conditions, and because Mr. Palaskis death resulted from losing control of his bicycle due to certain dangerous road conditions (a sand-covered mound and a bridge rail), his accident falls within the scope of the PAR doctrine. This line of thinking has been rejected many times by case law.
For example, while an inherent risk of snow skiing is colliding with another skier, PAR does not bar an action brought by a skier injured by an intoxicated skier. Holding intoxicated skiers legally liable for injuries they cause will not deter vigorous participation in the sport or fundamentally alter the nature of the sport. (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1396.) Likewise, while the sport of off-roading involves inherent risks of collisions (Distefano v. Forester(2001) 85 Cal.App.4th 1249), PAR does not necessarily bar a tort action arising from a collision in which the 14-year old operator of an all-terrain vehicle (ATV) was driving in violation of the Vehicle Code; enforcing compliance with the Vehicle Code would not preclude young operators of ATVs from fully participating in the sport. (Huff v Wilkins (2006) 138 Cal.App.4th 732.) Another example is horseback riding. This activity carries an inherent risk of falling, but, while PAR eliminates any duty of ordinary care that one competitor owes another to ensure against falling, PAR does not apply to eliminate the duty owed by the stables owner and the plaintiffs instructor to avoid an unreasonable risk of injury from falling. (Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th at pp. 822-823.)
The majority has adopted States contention that encountering difficult road conditions is integral to long-distance bicycling, and therefore, any accident arising from difficult road conditions falls within the PAR doctrine. The logical extension of that argument is that the state is immunized under PAR from legal liability to bicyclists, but not to motorists, for creating a 10-foot deep hole in the roadway or removing a bridge without warning to approaching bicyclists. This contention completely ignores many cases that have distinguished between risks inherent in the activity and risks that were increased by States conduct.
The majority opinion also fails to comprehend the distinction between foreseeable risks and inherent risks. That failure leads to the absurd conclusion that PAR bars tort actions against negligent motorists who injure bicyclists since, according to Richard S. Knapp, one of States experts, "the risk of being interfered with by a motor vehicle" is an inherent risk of bicycling. It is not an inherent risk of bicycling. It is foreseeable that a bicyclist may be injured by a negligent motorist, but it is not the same thing as saying that an inherent risk of bicycling is being injured by a negligent motorist.
Not only was Mr. Palaskis accident not an inherent risk of solo recreational bicycle riding, the summary judgment evidence presents triable issues of fact whether States acts and omissions increased the risks inherent in the activity by creating an "extreme risk of injury." (Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at p. 193; Sanchez v. Hillerich & Bradsby Co., supra, 104 Cal.App.4th at p. 715.) Even though falling off a bicycle is arguably an inherent risk of biking, the states actions in creating a sand-covered mound and a low bridge rail raise triable issues of fact whether State increased the risks over and above those that inhere in recreational bicycle riding. State has not demonstrated that "under no hypothesis can plaintiff[s] prove defendant did increase the inherent risks of [bicycling]." (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366 [summary judgment for ski resort under PAR reversed].) While SAR may apply, PAR does not. (Morgan v. Fuji Country USA, Inc., supra, 34 Cal.App.4th 127; Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th 184; Saffro v. Elite Racing, Inc., supra, 98 Cal.App.4th 173; Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th 1310; Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577; Solis v. Kirkwood Resort Co., supra, at pp. 364-366 [even though falling is inherent risk of skiing, question of fact whether artificial jump built by resort increased risk and created duty to warn].)
Plaintiffs introduced evidence that the state increased the risk of danger for bicyclists by spreading sand in the area, creating an asphalt bump, and building a bridge rail too low. Whether one characterizes this as increasing the risks above those inherent in the sport or creating an extreme risk of injury, it simply cannot be said as a matter of law that Mr. Palaskis death resulted from an inherent risk in recreational biking.
Citing Parsons v. Crown Disposal Co., supra, 15 Cal.4th 456, the majority contends that because State did not have an "organized relationship" to the sport, it did not have a duty to refrain from increasing the risks. The contention overstates the holding of Parsons. Parsons held:
"These post-Knight cases confirm that when, as here, no relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty upon the defendant to avoid increasing the risk of harm to the plaintiff over that posed by the activity in which the plaintiff happens to be engaged, the defendant has no such duty." (Id. at p. 483, italics added.)
In Parsons, a rider was thrown from his horse that was frightened by the noise of a garbage truck. Summary judgment was granted in favor of the garbage company and affirmed by the high court. The court concluded that (1) the facts dispelled any claim that defendant acted negligently and (2) PAR applied since the parties had no relationship.
Parsons is inapposite. Unlike the defendant in Parsons, State has a statutory duty to maintain its public highways in a nondangerous condition for the protection of highway users like Mr. Palaski. (Gov. Code, § 835.) This creates a relationship between them, which is analogous to the relationship between sports venue owners and those who use their venues for sporting activities.
On the issue of policy considerations, there is no sound policy reason for negating States statutory duty to keep its public property safe for the protection of solo recreational bicyclists, while retaining the duty for the protection of other bicyclists, motorists and other users. Section 835 of the Government Code codifies public policy that State shall not maintain its public roadways in a dangerous condition and is subject to legal liability if it does so.
The question whether PAR applies in this case is a question of law. (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) While the court may consider expert testimony regarding the risks considered "inherent" in the activity, it is not controlling on the ultimate legal question of duty. (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 593, fn. 4.)
States expert, Mr. Knapp, listed among the inherent risks of long-distance recreational bicycle riding the risk of being interfered with by a motor vehicle, risk of flat tires, risk of wind blow-back created by truck traffic, and risk of dehydration or physical exhaustion. As mentioned, I disagree that the risk of being interfered with by a motor vehicle is an inherent risk of bicycling. Nevertheless, the evidence submitted by State does not even assert that the specific hazards that caused Mr. Palaskis accident are inherent in this type of bicycling activity. States experts opinions do not state that it is an inherent risk of solo long-distance recreational bicycling to lose control of ones bicycle due to an unnoticeable sand-covered, two-inch mound, to then strike a low bridge rail and be hurled over the rail more than 65 feet to ones death. The experts opinions are couched in more general terms. Even if those opinions were couched differently and specified that the circumstances of Mr. Palaskis accident fall within the inherent risks of bicycling, those opinions are not binding on the court. (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th 577.) Moreover, plaintiffs experts opinions that the sand, mound, and bridge rail created substantial risks of danger are sufficient to raise triable issues of fact whether this accident resulted from inherent risks or from risks that were increased by States conduct. (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1396, fn. 5 [even though no direct evidence that drinking while skiing increases risk of collision, in evaluating partys opposition to motion for summary judgment, court could reasonable infer from experts testimony that risk was increased].)
This is not a PAR case. It may be a case suitable for SAR. Summary judgment should not have been granted. I would reverse the summary judgment entered in States favor.