Opinion
C078719
01-31-2018
WYATT LARSEN, Plaintiff and Appellant, v. CITY OF FOLSOM, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2013-00140947-CU-PO-GDS)
Plaintiff Wyatt Larsen fell in a city bicycle lane while participating in a group cycling ride organized by Cycle Folsom. He fell while riding third back in a two-column or "two-up" paceline and sued the City of Folsom (the City) for alleged negligent maintenance of the bicycle lane.
The City moved for summary judgment, asserting the affirmative defense of primary assumption of risk and further claiming the pavement irregularity where Larsen fell was a trivial defect for which it had no liability as a matter of law. The trial court ruled Larsen demonstrated no triable issue of material fact and granted the City's motion for summary judgment.
Larsen now contends (1) the primary assumption of risk defense was not available to the City because he had no organized relationship with it; (2) the primary assumption of risk doctrine does not alter the duty of the City to provide safe streets for all users; (3) even if the City is a venue owner, it breached a duty to minimize the risks of organized group road cycling; and (4) the hole that caught Larsen's bicycle tire was not trivial.
We will affirm the judgment.
BACKGROUND
The mission of Cycle Folsom is to provide "an environment where cyclists can improve their cycling skills, strength and endurance through intelligent training and nutrition." When Larsen joined Cycle Folsom, he signed a waiver releasing it from liability and stipulating that road biking was an inherently dangerous activity. Larsen was an experienced rider who averaged 5,000 bicycle miles per year. Cycle Folsom notified its members in an article entitled "Pacelines/How to Ride in a Group" that riding in a paceline is the "essence of group riding" and it "allows cyclists to travel faster with less effort and provides a better social experience." Although it is an extension of a fundamental cycling skill, the paceline does have inherent dangers and requires good communication among riders. Cycle Folsom's group organizer explained that, in a paceline, the person at the head of the line breaks the force of the wind so, with less resistance, those following close behind can experience an energy savings upwards of 30 percent at higher speeds.
In 2012, Cycle Folsom organized a weekly bike ride looping between Folsom and El Dorado Hills, advertising it as the "Tuesday Climbing Ride," and calling it "suitable for advanced riders riding at a brisk pace over a route with difficult climbs." The ride covered 30 miles and climbed about 2,000 feet over a two-hour period.
On a clear day in September, between 20 and 25 riders were participating in the Tuesday Climbing Ride. Larsen had ridden it four or five times before. About five miles into the race, Larsen crashed and fell. At the time of the crash, he was riding third back on the inside of a "two-up" paceline (in the right-side column next to the curb) at about 18 to 20 miles per hour, just 24 inches behind the rider ahead of him. There was not a bicyclist riding in the left-side column next to Larsen. Larsen's paceline had been traveling along Iron Point Road in Folsom when his tire hit a patch where the pavement had subsided following a repair.
The pavement depression that caught Larsen's tire was 11 inches wide by 17 inches long and approximately one inch deep and it ran immediately adjacent to the concrete gutter. The rider at the head of the paceline that day saw and pointed out the obstacle, but the second rider did not point it out to Larsen because the crash "happened so fast." Larsen did not notice it until his hands were jarred off the handlebars of his bike. The rider behind him also fell.
The City explained in its moving papers that the pavement irregularity Larsen encountered was a "cat hole," a place where pavement had been cut and dug out to allow access to wiring from sensors that controlled nearby traffic lights; after their use, cat holes are backfilled with compacted rock and sand and covered with new asphalt. The cat hole here was located to the far right side of the bike lane, extending approximately 11 inches into a marked lane that was, at that point, five feet three inches wide. No evidence was presented that any other bicycle accidents had happened near the cat hole.
The City's expert had competed as an amateur and professional cyclist for 17 years and had been a member of two Olympic cycling teams. He opined that the cat hole did not create a substantial risk of injury to cyclists using the bike lane with due care and in a manner for which it was reasonably foreseeable the lane would be used. He said safe practice for a cyclist riding alone would be to use the center of the bike lane, which in this instance would be 20 inches from the nearest edge of the cat hole; he also said a cyclist traveling 15 or 20 miles per hour and exercising reasonable attention would readily recognize and have sufficient time to avoid the cat hole, as one of the riders in Larsen's paceline said he had done that day and on many previous occasions. The expert went on to describe the risks and benefits of cycling in a paceline formation, saying that it helped riders conserve energy but held the inherent risk of riders not being able to see and avoid road hazards like debris, gravel, sand, cracks, and depressed asphalt conditions like the one Larsen encountered.
Concluding that Larsen had assumed the risk of falling and sustaining injuries, the trial court granted the City's motion for summary judgment. The trial court did not address the City's contention that the cat hole was a trivial defect as a matter of law.
STANDARD OF REVIEW
Summary judgment is granted if the papers submitted by the parties show no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A moving defendant bears the burden of proving affirmative defenses. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468-469.) The burden then shifts to the plaintiff to make a prima facie showing of a triable issue of material fact. (Ibid.) On appeal, we review a grant of summary judgment de novo, "considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We review evidentiary rulings for abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)
DISCUSSION
Larsen contends the primary assumption of risk defense was not available to the City because he had no organized relationship with it.
The California Supreme Court has described two categories for assumption of risk, primary and secondary. (Knight v. Jewett (1992) 3 Cal.4th 296, 309, 314-315 (Knight).) Primary assumption of risk excuses the defendant from the usual duty of ordinary care which everyone owes to avoid injury to others. (Civ. Code, § 1714, subd. (a); Priebe v. Nelson (2006) 39 Cal.4th 1112, 1120-1121 (Priebe); Knight, supra, 3 Cal.4th at p. 315.) If it applies, primary assumption of risk completely bars recovery in a negligence action because, as a matter of law, the defendant does not owe a legal duty of care to the plaintiff. (Gregory v. Cott (2014) 59 Cal.4th 996, 1001 (Gregory); Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 (Beninati).)
Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. "The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty 'would work a basic altercation—or cause abandonment' of the activity. [Citations.]" (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156-1157 (Nalwa).)
The existence of a duty, and whether a case falls within the primary assumption of risk doctrine, are questions of law to be decided by the court. (Nalwa, supra, 55 Cal.4th at p. 1166; Priebe, supra, 39 Cal.4th at p. 1128; Knight, supra, 3 Cal.4th at p. 313; Beninati, supra, 175 Cal.App.4th at p. 656.) But the scope of a city's duty to protect those who use public roads is subject to a primary assumption of risk defense. (Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201.) And the primary assumption of risk doctrine has been applied to an organized group bicycle ride. (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221-1223.)
Larsen suggests the primary assumption of risk defense does not apply here because he had no organized relationship with the City. He relies on two cases: Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456 (Parsons) [garbage company not liable for injuries caused when horse threw rider after being frightened by garbage truck operating in normal manner], and Mastro v. Petrick (2001) 93 Cal.App.4th 83 (Mastro) [snowboarder who collided with skier had no duty to protect the skier from collision]. Certainly, both cases reiterated that in considering duty, we must examine the nature of the relevant sport or recreational activity and the parties' relationship to the activity. (Parsons, supra, 15 Cal.4th at pp. 482; Mastro, supra, 93 Cal.App.4th at p. 88; see also Knight, supra, 3 Cal.4th at p. 313.) But neither decision stands for the proposition that primary assumption of risk cannot apply to an organized group bicycle paceline traveling on a city bicycle lane.
Larsen further relies on Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, but that case is also inapposite. The court in Childs said it could not conclude that a child riding a scooter on a residential sidewalk would always constitute a recreational activity subject to the primary assumption of risk. (Id. at p. 71.) As we have explained, however, the primary assumption of risk doctrine does apply to an organized group bicycle paceline.
Larsen next claims the primary assumption of risk doctrine does not alter the duty of the City to provide safe streets for all users. But as we have already explained, his contention is incorrect. If it applies, primary assumption of risk completely bars recovery in a negligence action because, as a matter of law, the defendant does not owe a legal duty of care to the plaintiff. (Gregory, supra, 59 Cal.4th at p. 1001; Beninati, supra, 175 Cal.App.4th at p. 658.)
In related arguments, Larsen claims (1) even if the City is a sports venue owner, it breached a duty to minimize the risks of organized group road cycling; and (2) the hole that caught Larsen's bicycle tire was a hazardous condition for which the City was liable. His first argument is based on two faulty assumptions: that the City can only assert primary assumption of risk if it is a sports venue owner, and that even if primary assumption of risk applies, the City nevertheless breached its duty. His second argument reasserts his belief that the City is liable. But we have already explained that primary assumption of risk applies to Larsen's cycling activity and that it eliminates the City's duty. Larsen's arguments lack merit.
DISPOSITION
The judgment is affirmed. The City shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
MAURO, Acting P. J. We concur: MURRAY, J. HOCH, J.