Opinion
C041511.
10-27-2003
TIMOTHY MAULDIN et al., Plaintiffs and Appellants, v. DAVID COUPE et al., Defendants and Respondents.
Plaintiffs appeal from a judgment entered following an order granting defendants motion for summary judgment. Plaintiffs claims stem from injuries sustained during a motocross race sponsored by defendants. The trial court found the evidence undisputed that plaintiffs claims are barred by express assumption of risk. We disagree and reverse the judgment.
FACTS AND PROCEEDINGS
On review of an order granting summary judgment, we consider the evidence in the light most favorable to the losing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
On December 5, 1999, plaintiffs, Timothy and Angela Mauldin, and their four children attended motocross races at the E Street racecourse in Marysville. The races consisted of specially equipped motorcycles, commonly referred to as dirt bikes, riding around a dirt course 1.2 miles long, containing straightaways, turns, jumps and uneven surfaces (the racecourse). During one of the races, a dirt bike left the racecourse and struck Timothy Mauldin.
The E Street racecourse is owned by Yuba County. There is no grandstand near the racecourse and no artificial barrier between the racecourse and spectators. Spectators either stood or sat adjacent to the racecourse, the edge of which was marked in places by tape and pennants. Signs were posted in a few locations warning spectators to stay 20 feet away from the racecourse.
The races at the E Street racecourse on December 5, 1999, were sponsored by defendants, David Coupe, Jack Azevedo, Sr., Jack Azevedo, Jr., Glenda Azevedo, and AMP Racing, LLC. Defendants required all spectators entering the E Street racecourse to sign a document entitled "RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT" (the release), which purported to release the promoters from liability for any injuries suffered by the spectator on the premises.
When plaintiffs drove into the E Street racecourse, Timothy Mauldin was handed a clipboard containing a copy of the release and was told to sign it. The title was obscured by the clip on the clipboard. Timothy signed the form without reading it. He felt rushed, because there were five cars in line behind him. Angela Mauldin was told she did not need to sign the form, and plaintiffs were not asked to sign on behalf of their children.
At some point during the races, Timothy Mauldin walked to within 10 feet of the racecourse to warn some children to move. At the same time, a race participant lost control of his dirt bike, left the racecourse and struck Timothy. There were no ribbons or pennants marking the edge of the racecourse at this location.
Plaintiffs sued defendants for negligence and loss of consortium. Defendants moved for summary judgment on the basis of both express and implied assumption of risk. The trial court granted the motion on the first ground, concluding that the release was effective to preclude plaintiffs claims. Judgment was entered for defendants. Plaintiffs subsequent motion for new trial was denied. Plaintiffs appeal from the judgment and the order denying a new trial.
DISCUSSION
I
Summary Judgment Standards
"Under summary judgment law, any party to an action, whether plaintiff or defendant, `may move the court `for summary judgment in his favor on a cause of action (i.e., claim) or defense (Code Civ. Proc., § 437c, subd. (a))—a plaintiff `contend[ing] . . . that there is no defense to the action, a defendant `contend[ing] that the action has no merit (ibid.). The court must `grant[] the `motion `if all the papers submitted show that `there is no triable issue as to any material fact (id., § 437c, subd. (c))—that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations]—and that the `moving party is entitled to a judgment as a matter of law (Code Civ. Proc., § 437c, subd. (c))." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
"We independently review the parties papers supporting and opposing the motion, using the same method of analysis as the trial court. [Citation.] The moving party bears the burden of proving that the claims of the adverse party are entirely without merit on any legal theory. [Citation.] The opposition must demonstrate only the existence of at least one triable issue of fact [citation], and all doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion." (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1836.)
II
Resolution No. 1999-150
On September 7, 1999, the Yuba County Board of Supervisors passed resolution No. 1999-150, granting David Coupe a permit to use the E Street racecourse for races on December 5, 1999, and March 5, 2000. This resolution required, among other things, that Coupe "erect and maintain during the events and thereafter remove sufficient and adequate fencing and/or restraining devices to warn and keep away event participants and spectators from dangerous topographical areas in and around the real property . . . ."
Plaintiffs contend defendants violated this requirement by failing to erect barriers in areas "where motorcycles might leave the track, causing injury to spectators . . . ." Plaintiffs further contend defendants were not relieved of this responsibility by the release. They cite Civil Code section 1668, which reads: "All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law."
Defendants counter that resolution No. 1999-150 is not a law subject to Civil Code section 1668, and at any rate, they did not violate it. Defendants have the better argument.
"`"An ordinance in its primary and usual sense means a local law. It prescribes a rule of conduct prospective in operation, applicable generally to persons and things subject to the jurisdiction of the [county]. `Resolution denotes something less formal. It is the mere expression of the opinion of the legislative body concerning some administrative matter for the disposition of which it provides. Ordinarily it is of a temporary character, while an ordinance prescribes a permanent rule of conduct or of government."" (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 979.)
Resolution No. 1999-150 imposed obligations on Coupe as conditions for obtaining a permit to conduct races at the E Street racecourse. Included were requirements for obtaining insurance, limitations on the hours of operation, cleanup obligations and so on. These requirements were not laws within the meaning of Civil Code section 1668; they were more in the nature of covenants.
At any rate, there is no evidence of a violation of the fencing requirement of resolution No. 1999-150. Contrary to plaintiffs assertion, the fencing requirement did not impose on defendants a duty to erect fences or other barriers around the racecourse or in areas where dirt bikes might leave the course. The resolution required Coupe to provide barriers or warnings for "dangerous topographical areas in and around the real property." The only reasonable interpretation of this provision is to limit the barrier or warning duty to areas that are dangerous because of the particular topography, such as excavation pits or other places from which one might fall or otherwise be injured. The racecourse is not dangerous because of its topography but because of the activities conducted thereon. The resolution requires barriers to keep "event participants and spectators" away from dangerous topographical areas. Plaintiffs interpretation of this provision would lead to the absurd result that defendants were obliged to erect barriers to keep race participants away from the racecourse. Here, there is no evidence to suggest Timothy Mauldin was injured because defendants failed to erect a barrier around a dangerous topographical area.
III
Express Assumption of Risk
The trial court concluded that plaintiffs claims are barred by the release signed by Timothy Mauldin upon entering the E Street racecourse. The release read, in its entirety:
"IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he comes in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgement that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use, and he further agrees and warrants that if, at any time, he is in or about restricted areas and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the restricted areas:
"1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoter, participants, racing association, sanctioning organization or any subdivision thereof, track operator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted areas, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event and each of them, their officers and employees, all for the purposes herein referred to as `releasees, from all liability to the undersigned, his personal representatives, assigns, heirs, and next of kin for any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event.
"2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of the undersigned in or upon the restricted area or in any way competing, officiating, observing, or working for, or for any purpose participating in the event and whether caused by the negligence of the releasees or otherwise.
"3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.
"EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage. EACH OF THE UNDERSIGNED further expressly agrees that the foregoing release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the Province or State in which the event is conducted and that if any portion hereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
"THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements or inducements apart from the foregoing written agreement have been made."
Plaintiffs contend the release was too indefinite to be enforced. According to plaintiffs, "[i]t is obvious from a review of the full language of the release in question that a lay person reading it would be looking for `restricted areas from which to stay out of, and would presume that any areas not marked restricted were safe for him to observe the race from." Plaintiffs further contend the release, as worded, could not exculpate defendants from their active, rather than passive, negligence. Finally, plaintiffs contend an issue of fact exists as to whether Timothy Mauldin knowingly and intelligently agreed to release defendants from liability and whether he was subject to undue influence in signing the form. Plaintiff points out that if all persons who signed the form on December 5, 1999, had read it before doing so, it would have taken 30.7 hours for all of them to be admitted to the E Street racecourse.
Defendants contend the release was clear and unambiguous and covered active negligence. They further contend Timothy Mauldin is bound by the release despite having failed to read it. Finally, defendants contend there is no evidence of undue influence by defendants, only Timothys perception that he was being rushed.
Although Timothy did not read the release before signing it, this provides him no excuse. In the absence of fraud or overreaching, one who signs an instrument may not avoid its impact by claiming he failed to read it. (Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 339.) Thus, we analyze this matter as if the release had been read before signing.
Because the trial court construed the written release without the aid of conflicting parol evidence, the interpretation of that release is a question of law for this court. (Rooz v. Kimmel (1997) 55 Cal.App.4th 573, 585.) General contract principles govern release agreements. (Appleton v. Waessil (1994) 27 Cal.App.4th 551, 554.) "The appellate courts objective in construing contractual language is to determine and effectuate the intention of the parties. [Citation.] `It is the outward expression of the agreement, rather than a partys unexpressed intention, which the court will enforce. [Citation.]" (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.)
"[T]o be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that partys own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement." (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318.) "A valid release must be simple enough for a layperson to understand and additionally give notice of its import. A drafter of such a release faces two difficult choices. His Scylla is the sin of oversimplification and his Charybdis is a whirlpool of convoluted language which purports to give notice of everything but as a practical matter buries its message in minutiae." (Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1566.) However, "a release need not achieve perfection . . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence." (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.)
The trial court concluded correctly that the release at issue here was broad enough to cover the injuries suffered by Timothy. It provided that the signer released "the promoter . . . from all liability . . . for any and all loss or damage . . . whether caused by the negligence of the releasees or otherwise while the undersigned is . . . observing . . . the event." However, the foregoing excerpt is taken from a 146-word sentence covering any injury incurred "while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event." This sentence was preceded in the release by a one-sentence paragraph that was even longer and recited that the release is being given "IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA . . . " or to "compete, officiate, observe, work for, or for any purpose participate in any way in the event . . . ." This sentence recited that the signer "has, or will immediately upon entering any of such restricted areas, . . . inspect such restricted areas and all portions thereof with which he enters and with which he comes in contact . . . ." It further stated that the signer warrants "that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgement that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use . . . ."
In Hohe v. San Diego Unified Sch. Dist., supra, 224 Cal.App.3d 1559, a minor was injured during a school hypnotism show. Prior to the show, her parent signed two documents. The first read: "`CAUTION [¶] Children with any mental disorder or of a nervous disposition are not allowed to participate. A portion of the program occasionally contains adult theme; parental discretion is advised. [¶] SUBJECTS ARE REQUIRED TO ARRIVE at 6:30 p.m. [¶] My son/daughter Sarah Hohe, grade 11 has my permission to be hypnotized by Dr. Karl Santo during his program at Mission Bay High School. I waive all liability against the PTSA, its members, Mission Bay High School, and the San Diego Unified School District." (Id. at p. 1563, fn. 1.) The second document, which was also signed by the minor, read: "`I agree to indemnify and hold you and any third party harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show including any utterances made by me during the above named show or material furnished by me in connection with my participation in the show. I am solely responsible for my appearance in the show and for any loss to any party arising therefrom. [¶] I acknowledge that I am not receiving any compensation from my participation or the above authorization; and that you are relying on the above understandings in your use and broadcasting of my participation and in the production and promotion of the Magic of the Mind Show." (Id. at p. 1563, fn. 2.)
Despite the reference to "all liability" in both forms, the Court of Appeal reversed summary judgment for the school district. The court explained: "Our analysis is not based on the mechanical application of some formula. The presence or absence of the words `negligence or `bodily injury is not dispositive. We look instead to the intention of the parties as it appears in the release forms before the court. In this instance, the intention as expressed in the releases signed by the parent for his child is not clear. Although the parent waived all liability it was in the context of two documents which focused on mental and nervous disorders, defamation and broadcast rights. The scope of the waiver is ambiguous. Where the intention of the parties on the face of the releases is ambiguous, a triable factual issue is presented." (Id. at pp. 1567-1568.)
As in Hohe, we will not isolate seemingly broad language in a release and consider it divorced from its context. (See Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 764.) The release at issue here was longer and more misleading than that in Hohe. Although the release covered injuries incurred while observing the race from any location, this was in the context of a document that appeared to be limited to injuries incurred while in a restricted area. The release specifically defined restricted area to include "the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place." It also contained a declaration that the undersigned has inspected the restricted areas and found them safe, suggesting that as long as the person does not go into restricted areas he or she had nothing to fear. If the release was intended to cover any injury suffered in any location, there was no reason to single out restricted areas.
Based on the language of the release, when considered as a whole, we cannot say that Timothy Mauldin intended to absolve defendants from liability for the injuries suffered in the incident that gave rise to this litigation. The release failed to "clearly notify [Timothy] of the effect of signing [it]." (See Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at p. 318.) Summary judgment was therefore not properly granted on the basis of express assumption of risk.
IV
Implied Assumption of Risk
In their motion for summary judgment, defendants raised both express and implied assumption of risk. Although the trial court granted the motion on the basis of express assumption of risk alone, we may affirm a grant of summary judgment if proper on any ground, regardless of the trial courts reasoning. (Troche v. Daley (1990) 217 Cal.App.3d 403, 407-408.)
Implied assumption of risk is of two types, primary and secondary. "Secondary assumption of risk is the traditional variety where a defendant breaches a duty of care owed to the plaintiff but the plaintiff nevertheless knowingly encounters the risk created by the breach. Secondary assumption of risk is not a bar to recovery, but requires the application of comparative fault principles. [Citation.] [¶] Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports. [Citation.] Primary assumption of risk is a complete bar to recovery. [Citation.] [¶] Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature." (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751-752.)
Primary assumption of risk is not limited to participants in the sport. In Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, a spectator at a baseball game was injured by a foul ball and sued the owners of the stadium for negligence in failing to protect her. The Court of Appeal affirmed summary judgment for the defendants, explaining: "The simple issue here is whether the owner of a baseball stadium has a duty to protect spectators from the natural hazards generated by the way in which the game itself is played. In determining whether an individual, such as plaintiff, should be compensated for his or her injury and in crafting a rule which would permit or reject such compensation there is a group of persons other than the immediate parties whose interests are worthy of consideration. Those are the literally millions of persons who attend baseball games all over the country. [& para;] The quality of a spectators experience in witnessing a baseball game depends on his or her proximity to the field of play and the clarity of the view, not to mention the price of the ticket. [¶] As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyones view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be `priced out of enjoying the great American pastime. [¶] To us, neither alternative is acceptable. In our opinion it is not the role of the courts to effect a wholesale remodeling of a revered American institution through application of the tort law." (Id. at pp. 180-181.)
Timothy Mauldin was injured when a dirt bike went out of control, left the racecourse and struck him. He was within 10 feet of the racecourse at the time. In their complaint, plaintiffs allege that defendants "failed to designate areas which were considered safe for spectators and areas which were considered unsafe for spectators and failed to designate any areas as RESTRICTED." Defendants further "failed to mark the perimeter of the areas safe for spectators and failed to mark the perimeter of RESTRICTED areas." However, Timothy knew that the area he moved into before the accident was unsafe. He went there specifically to warn some children. Thus, the proximate cause of Timothys injuries was not a failure to warn but a failure to prevent the dirt bike from leaving the course and striking him.
In their statement of undisputed facts, defendants asserted: "Motorbikes leaving the track is an inherent aspect of motocross racing." In support, defendants cited the declaration of David Coupe, who indicated he had been involved with motocross racing for 30 years, both as a rider and a spectator. Coupe stated he had participated in over 600 races and viewed thousands. According to Coupe, "[g]iven the nature of the track and the competitiveness of the riders, a rider losing control of his or her motorcycle is not an uncommon event." Coupe further indicated that while spectators are warned to stay 20 feet away from the track, they "frequently sit or stand much closer to the track to be closer to the action."
Plaintiffs disputed defendants assertion that dirt bikes leaving the racecourse are an inherent part of the sport. They cited as support the deposition and declaration of Timothy Mauldin. Timothy testified that at the time of the accident, he did not expect a rider to come that far off the racecourse and had never seen it happen before. In his declaration, Timothy stated he selected a place from which to watch the race along a straightaway, which he considered to be safe.
Motocross racing involves the use of an uneven dirt course on which participants vie to be the first to cross the finish line. Given the nature of the sport, it is inevitable that on occasion competitors will lose control of their dirt bikes and venture off the course. However, assuming a dirt bike going out of control and leaving the course is an inherent part of the sport of motocross racing, this does not end our inquiry. "Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.) For example, in Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, the court held that while falling off a horse is an inherent risk of riding through a jump course, an instructor at a riding club had a duty of care to ensure that the jumping array the instructor set up for the rider was not beyond the capabilities of the horse and rider. (Id. at pp. 822-823.) In Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, the court concluded that while jumps and falls are inherent in the sport of bicycle motocross racing, the operator of a race course had a duty "to refrain from utilizing jumps which by design create an extreme risk of injury." (Id. at p. 193.)
On the present record, we are unable to determine whether the incident that caused Timothys injuries resulted from a risk inherent in the sport or an unnecessarily dangerous design of the course and surrounding environs. The record contains little information about the physical layout of the racecourse, such as the physical characteristics of the surface vis `a vis other racecourses or whether the racecourse was banked or otherwise designed to keep out-of-control riders from veering into the crowd. Nor do we know the makeup of the race itself, such as whether the number and skill levels of the participants were such as to create an increased risk of a participant losing control. We are also unable to determine whether a course with no barrier whatsoever is an inherent part of the sport of motocross racing. A modest barrier might have been enough to prevent the injury without detracting from the spectators enjoyment of the sport. While defendants may have had no duty to protect against risks inherent in motocross racing, they did owe a duty "to minimize the risks without altering the nature of the sport." (Knight v. Jewett, supra, 3 Cal.4th at p. 317.)
On a motion for summary judgment, the burden is on the moving party to establish the absence of a triable issue of fact and its right to judgment as a matter of law. Defendants failed to satisfy that burden in this instance.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court with directions to vacate its order granting defendants motion for summary judgment and to enter a new order denying the motion. Plaintiffs are awarded costs on appeal.
We concur: DAVIS, Acting P.J.
RAYE, J.