Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Benito County Super. Ct. No. CU0400018
Premo, J.
Plaintiff Michael J. Miller sued defendant State of California for negligence after he suffered injuries while driving his motorcycle over a 10-foot embankment in Hollister Hills Off-Road Vehicle Park (Park). The trial court granted defendant’s motion for summary judgment on four alternative grounds: (1) the embankment was not a dangerous condition of public property (Gov. Code, §§ 830, 835), (2) plaintiff’s claims were barred by the primary-assumption-of-the-risk doctrine (Knight v. Jewett (1992) 3 Cal.4th 296 (Knight)), (3) defendant was immune because plaintiff had been injured while engaged in a hazardous recreational activity (§ 831.7), and (4) defendant was immune because plaintiff had been injured on an unpaved trail (§ 831.4). On appeal, plaintiff contends that, in certain respects, defendant failed to carry its burden to negate his cause of action or establish its defenses and, otherwise, he raised triable issues of fact as to each of the grounds relied upon by the trial court. We reverse the judgment.
Plaintiff’s wife and minor sons are also party plaintiffs. Melodie A. Rea-Miller, plaintiff’s wife, is named in her own right and as guardian for Kenneth R. Miller and Andrew K. Miller.
Further unspecified statutory references are to the Government Code.
Scope of Review
A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiff’s 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.) In other words, summary judgment should be granted only when a moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
Because a motion for summary judgment raises only questions of law, we independently review the parties’ supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.) In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court’s determination of a motion for summary judgment. (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1121-1122.) We consider all of the competent evidence presented by the parties (declarations, judicial admissions, responses to discovery, deposition testimony, and items of which judicial notice may be taken) and the uncontradicted inferences supported by the evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) We liberally construe the evidence in support of the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards. (Cf. Aguilar v. Atlantic Richfield Co., supra, at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in favor of the party opposing the motion, and must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.) We resolve any doubt as to the granting of the motion in favor of the opposing party. (Renna v. County of Fresno (2000) 78 Cal.App.4th 1, 5.)
We apply the same three-step analysis as the trial court. (Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal.App.4th 1434, 1439.) “The first step of the review begins with an analysis of the pleadings, because ‘[t]he pleadings define the issues to be considered on a motion for summary judgment.’ [Citation.] We next evaluate the moving defendant’s effort to meet its burden of showing that plaintiff’s cause of action has no merit or that there is a complete defense to it. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to its complaint. If the filings in opposition raise triable issues of material fact the motion must be denied; if they do not, the motion must be granted.” (Miscione v. Barton Development Co. (1997) 52 Cal.App.4th 1320, 1325.)
First Amended Complaint
Plaintiff and his sons went to the Park, a recreational area that defendant maintains for the use of off-road vehicles. The Park caters to riders of all ages and experience levels from four-year-old minors riding mini-motorcycles to professional Motocross racers and free-style jumpers riding modern, high performance, high technology racing motorcycles. It also accommodates four-wheel drive all-terrain vehicles. It has a network of trails marked with color-coded signs similar to those on ski runs that announce the expertise and vehicle type appropriate for the trail. Plaintiff rode a dual-sport motorcycle, a vehicle oriented for highway use but suitable for casual, limited off-road use. Inside the Park was an oval, manmade sediment basin surrounded by an embankment rising up to 10 feet from the floor of the basin. Parts of the embankment sloped gradually down into the basin, but some parts dropped abruptly. The basin and the terrain surrounding the basin consisted of sand. Neither the basin nor the surrounding terrain had been designated as a trail for the use of off-road vehicles. But the terrain surrounding the basin showed that it was used by off-road vehicles. No warning signs advised against using the surrounding terrain or about drops from the embankment into the basin. Plaintiff was riding his motorcycle slowly and leisurely when he inadvertently encountered a 10-foot drop and plunged into the basin.
Defendant’s Showing
Defendant operates the Park as an off-road vehicle riding area for motorcycles and all-terrain vehicles. On the road inside the entrance, it has posted a sign that reads, “RIDE AT YOUR OWN RISK.” It maintains an oval sediment basin inside the Park to manage soil erosion and rainwater runoff that is approximately 65 feet by 55 feet. Park visitors ride their vehicles on the route to and in the basin. Over 1 million people have visited the Park since 1992 when defendant began maintaining accident records. Defendant has no record of any accidents occurring in the basin.
Plaintiff began riding off-road motorcycles in 1981 and had average skill level. When he entered the park on the day of the accident, he received a map of the Park from defendant that stated, “Before starting out, familiarize yourself with the terrain. AVOID SUPRISES” and “Drive within the limits of your ability. . . . When in doubt, take time to think and look the situation over before you proceed.” Plaintiff drove his motorcycle toward the basin. After the accident, he was found lying in the basin. He told park volunteer Peter Callies that “he had been riding in the area earlier in the day going off that same sand pit area, and when he went off this time, he didn’t realize he was in the deepest part of the pit. The front of the bike went down into the pit. He went over the handlebars, and then the bike--something on the bike hit him in the back when he landed.” One of plaintiff’s sons told park volunteer Mark Wise that plaintiff was going to jump into the basin but got off line and hit a steeper part that made him catch more air and flip off the motorcycle, which landed on top of him.
Plaintiff’s Showing
According to the Park’s map and rules, visitors using the Park were to drive only on the marked or designated trails. The sediment basin area was not marked or designated as a trail. No sign warned visitors to stay away from the basin area. The basin and area around the basin was worn by motorcycle riders. Park Ranger Todd Lewis testified that marked trails have “some dimension” but that “Typically, there would not be any type of a drop-off in the middle of a marked trail.” Plaintiff’s human factors and mechanical engineering expert, Richard Gill, opined that the area in which plaintiff rode was not a trail although an ordinary person would assume it was a trail due to the worn parts and lack of signs warning that a rider had left the marked trail. He offered that “an ordinary person riding into the area would see the difference in elevation between the approach and the bottom of the sediment basin, however, they would not know and would not assume there were any obstacles or sheer vertical drops, because those types of conditions do not occur on trails [and] . . . [a]n ordinary rider would expect the difference in elevation to be traversed by a ridable slope, not a drop off.” Plaintiff’s off-road expert Bill Uhl opined that “6 to 8 foot vertical drops and two-foot high drain pipes are not risks inherent to the sport of off-road motorcycle trail riding and not natural risks to the sport.” Park Maintenance Chief Jose Martinez testified that he had supervised two excavations of the sediment basin, one in 1998 and one in late 2002 or early 2003, which required “pushing the excess soil out and spreading it throughout the area.” According to Martinez, the work lowered the ground in the basin three to four inches and the excess dirt was placed in the surrounding area including the top of the embankment, which resulted in a higher embankment.
While the court may consider expert testimony regarding the risks considered “inherent” in an activity, it is not controlling on the ultimate legal question of duty. (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 593, fn. 4.) The drain pipe mentioned by Uhl, sometimes referred to by the parties as a metal culvert, exists in the sediment basin. In the trial court, plaintiff sometimes relied on the existence of the drain pipe as support for his claim that the basin was in a dangerous condition. But defendant correctly pointed out that plaintiff did not plead this theory. The pleaded theory is that defendant’s property was in a dangerous condition because of the drop off. On appeal, plaintiff acknowledges that the supposed dangerous condition is “the sediment basin in general and the drop-off in particular.”
Plaintiff’s accident happened in February 2003.
While riding his motorcycle in “low speed riding” between five and eight miles an hour, plaintiff turned into an offshoot path where other visitors had ridden, encountered a drop off, unsuccessfully tried an evasive maneuver, and went into the sediment basin. He does not remember what happened or talking to anyone after the accident. He spent months in the hospital and is a quadriplegic.
Dangerous Condition Of Public Property
Section 815 states that, except as otherwise provided by statute, public entities are not liable for injuries caused by the acts or omissions of the entities, their employees or any other persons, and that a public entity’s statutory liability is subject to its statutory immunity and to any defenses the public entity would have if it were a private person.
Section 835, one of the statutes permitting liability, sets out conditions under which a public entity may be determined to be liable for an injury caused by the condition of its property: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” Section 830, in turn, defines “dangerous condition” as a “condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a).) “A condition is not a dangerous condition . . . if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (§ 830.2.) In other words, whether a condition is dangerous depends upon how the general public would use the property exercising due care. The definition takes into consideration the standard of care applicable to all foreseeable users of the property, including children to whom a lower standard of care is applicable. (Cal. Law Revision Com. com. 32 West’s Ann. Gov. Code (1995 ed.) foll. § 830, p. 298.) The standard is objective. The plaintiff’s particular condition or use of the property is irrelevant to a determination of whether the condition was dangerous. (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465-1466.) “ ‘[W]hether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.’ ” (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810.)
Defendant argues that it negated the “dangerous condition” element of plaintiff’s cause of action by presenting “undisputed evidence that [plaintiff] was the only person injured in the sediment basin since 1992, during which time over 1,000,000 people had visited [the Park].” According to defendant, this supports that the basin was not a hazard to those who would foreseeably use the property with due care. It points out that the sport of off-roading “ ‘involves an elevated degree of danger’ ” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1257) and suggests that the condition of the basin is so obvious so that there can be no dangerous condition of property. It cites Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1385, in which the court held that there was no dangerous condition as a matter of law because the danger of riding a bicycle down a “very steep, wet, grassy hill [was] obvious from the appearance of the property itself.”
We agree with plaintiff, however, that defendant’s analysis is misfocussed upon the sediment basin generally rather than focused on the drop off specifically. The first amended complaint alleges that defendant’s property was dangerous because of the drop off and defendant’s failure to either barricade the drop off, warn of the drop off, or close the area accessing the drop off. Defendant has therefore failed to negate the “dangerous condition” element of plaintiff’s cause of action. Even assuming that defendant carried its burden to negate the element, plaintiff has at least raised a triable issue of fact as to this issue. Liberally construed, plaintiff’s evidence suggests that the drop off was unmarked, difficult to see, and unexpected. It is foreseeable that users could approach it without knowing that it was there.
Defendant continues its argument by urging that plaintiff did not raise a triable issue as to the secondary predicate for section 835 liability, i.e., whether it was negligent (whether it breached a duty) or had notice of a dangerous condition. But plaintiff had no burden to raise a triable issue as to these points because defendant did not negate the points in the motion for summary judgment. The section 835 aspect of defendant’s motion was limited to arguing that there was no dangerous condition as a matter of law. It may be true that defendant is likely responding to points that plaintiff chose to make in his opening brief. But the points are nevertheless beyond the scope of the issues raised by defendant’s motion.
Primary Assumption Of Risk
Primary assumption of the risk (PAR) is a complete bar to recovery. It is a policy-driven legal concept where the court declares that the defendant had no duty at all. (See Knight, supra, 3 Cal.4th at p. 308.) The doctrine is different from secondary assumption of the risk (SAR), which involves the situation wherein the defendant owes a duty to a plaintiff who voluntarily encounters a known risk created by the defendant’s breach. (Ibid.) SAR “is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” (Id. at p. 315.)
The existence of a duty of care is an element of a plaintiff’s 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 entity’s immunity from tort liability does not arise until it is determined that the entity owes the plaintiff a duty of care”].) Thus, a defense that negates a public entity’s duty of care establishes that the plaintiff cannot make out an essential element of a section 835 claim.
In Knight, the court held that the PAR doctrine eliminated any duty of care owed by participants to each other in a touch football game. It 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.” (Knight, supra, 3 Cal.4th at p. 319.)
The reasonableness or unreasonableness of the plaintiff’s conduct does not determine whether PAR applies. (Knight, 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.) This is to be contrasted with SAR in which a jury may assess comparative fault against a plaintiff who voluntarily chooses to engage in an unusually risky sport. (Id. at p. 314.)
Does the PAR doctrine apply to off-road motorcycle riding in an action against defendant? The answer depends on an analysis of the nature of the activity itself and the relationship between the activity and the parties. (Knight, supra, 3 Cal.4th at pp. 316-317.) Even if it is determined that PAR otherwise applies, separate consideration must be given to whether the plaintiff’s injuries resulted from a risk inherent in the activity or from a risk that was increased beyond that inherent in 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, supra, 3 Cal.4th at p. 311; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328 (Bush).)
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, rock climbing, and off-roading. (See Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1220-1221 [collecting cases]; Distefano v. Forester, supra, 85 Cal.App.4th 1249 [off-roading].) 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, they 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, they confirmed that the injury resulted from a risk that was inherent in the sport. Only when all three criteria were met did the courts 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 plaintiff’s head was struck by a tree limb that extended over water. The court affirmed a summary judgment for the defendant under PAR even though the accident did not result from an activity involving competition. PAR also applies to job-related activities falling within the “firefighter’s rule.” (Knight, supra, 3 Cal.4th p. 309, fn. 5.) In Cohen v. McIntyre (1993) 16 Cal.App.4th 650, the court affirmed a summary judgment 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 (Shannon)), recreational dancing (Bush, supra, 17 Cal.App.4th 322), and scooter riding (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64 (Childs)). 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. The court reversed a summary judgment for the defendant under PAR because it held that the evidence did not establish that scooter riding was a sporting activity as a matter of law. (Childs, supra, at pp. 70-71.)
Here, the parties do not dispute that off-road motorcycling qualifies as an activity that is subject to PAR though the activity engaged in by plaintiff did not involve competitors or require coparticipants. But this does not lead to the conclusion that plaintiff’s action against defendant 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 defendant’s duty to the plaintiff in a sports context depends not only on the nature of the sport itself, but also on the defendant’s role in or relationship to the sport. (Knight, 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.)
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. (2003) 31 Cal.4th 990, 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 stable’s 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. (Id. at p. 134; Knight, 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, 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 (Saffro), 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, but 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, quoting Knight, 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, supra, 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. The court of appeal reversed, noting 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. It 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.” (Id. at p. 756.) Since the rationale for PAR would not be served by barring the action, the court held PAR to be inapplicable.
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 appellate 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. (Id. at pp. 1315-1317.) Accordingly, it held that the trial court erred by granting summary judgment under PAR and noted that whether SAR would bar any recovery would be a question of fact reserved for trial. (Id. at p. 1318, citing Knight, supra, 3 Cal.4th at pp. 314-315.)
In Childs, 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. It first noted that the record did not establish scooter riding as a sport as a matter of law. Then, citing Knight, it 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.)” (Id. at p. 71.)
Here, defendant was the owner of the property on which the accident occurred. It is obligated by statute to avoid maintaining the property in a dangerous condition. (§ 835.) This obligation is imposed to protect all users of the property. Requiring defendant to fulfill this duty would not discourage vigorous participation in off-road motorcycle riding nor would it alter the fundamental nature of the activity. In fact, holding defendant to its statutory obligation to maintain its property in a safe condition would tend to have the opposite effect, that is, to encourage the activity, because, presumably, the safer the conditions, the more likely off-roaders would consider using the property. While applying the PAR doctrine in a suit against a coparticipant would serve the doctrine’s objectives (Distefano v. Forester, supra, 85 Cal.App.4th 1249), those objectives would not be served by applying PAR here in an action against defendant. Just as the PAR doctrine does not eliminate a ski resort’s duty to maintain towropes in a safe condition, a marathon race organizer’s duty to conduct a reasonably safe event, a baseball team’s duty to protect its players from certain injuries, and a ski resort’s duty to safely place directional signs, the PAR doctrine does not immunize defendant from meeting its statutory duties to avoid maintaining public property in a dangerous condition. There is nothing in the record to support the view that requiring State to perform its statutory duty will deter off-road motorcycle riding. Defendant neither disputes this point nor makes an argument on the point.
We conclude that the relationship between defendant and plaintiff’s activity was such that the policy considerations underlying the PAR doctrine would not be served by applying PAR in this case. While SAR might apply, PAR does not. We nevertheless observe the following as to the third prong required for the application of PAR.
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, 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 (1994) 30 Cal.App.4th 1388, 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, 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, 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 Snow Flakes 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 defendant’s 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 [stable’s 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, 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 PAR doctrine was not established against owner of airstrip where private airplane crashed notwithstanding that crashing is risk inherent in flying a plane].)
Defendant makes an argument as to this prong but it rests on the premise that it is an inherent risk of off-road motorcycling for a rider to lose control in a sediment basin because sediment basins are structures integral to and utilized in off-road parks. Again, however, defendant overlooks that it is not the risk of riding in a sediment basin but rather the risk of riding near an unmarked, difficult to see, and unexpected drop-off that is central to plaintiff’s theory. The proposition that plaintiff’s accident arose from an inherent risk of off-road motorcycle riding is untenable. We doubt that any off-roader--experienced or not--would agree with that assertion. Off-roaders, like plaintiff, do not anticipate that motorcycling in the Park carries with it an inherent risk of hurling over a drop-off into an area below. It may be reasonable to believe that off-road motorcyclists anticipate that they can lose control of their motorcycle and fall if, as defendant urges, they encounter blind hills, inherently uneven areas, and dirt trails that constantly change as the result of vehicular activity and the forces of nature. And it may also be reasonable to believe the same if, as defendant urges occurred here, they intentionally ride into a sediment basin, having previously ridden in the same sediment basin, while failing to comply with safe-riding guidelines. However, the liberally construed evidence favoring plaintiff here is that plaintiff did not fall because of the conditions of Mother Nature but because of a certain dangerous condition that defendant (1) may have aggravated by excavating, and (2) allowed to be accessible to off-roaders without warning, though park regulations forbid access. Even if plaintiff was intentionally riding into the sediment basin, as defendant urges via plaintiff’s admission to Callies, this does not contradict plaintiff’s implicit theme that he did not know the drop-off existed between him and the basin.
Many cases make this distinction between risks inherent in the activity and risks that were increased by the defendant’s conduct.
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, supra, 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 ATV’s 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 stable’s owner and the plaintiff’s instructor to avoid an unreasonable risk of injury from falling. (Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th at pp. 822-823.)
For this reason, Distefano v. Forester, supra,85 Cal.App.4th 1249, relied upon by defendant, is not analogous to this case, but Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th 184, relied upon by plaintiff, is similar to this case.
In Distefano, both the plaintiff and the defendant were coparticipants in the sport of off-roading. On a dirt road in an unincorporated desert area, the plaintiff was riding his motorcycle while the defendant was driving his dune buggy. When the plaintiff and the defendant approached the crest of a hill from opposite directions, the defendant’s dune buggy went over the hill and collided with the plaintiff’s motorcycle. As a result of the head-on collision, the plaintiff suffered serious injuries. In the litigation that followed, the plaintiff alleged that the defendant had negligently operated his dune buggy. The defendant, however, successfully moved for summary judgment on the ground of PAR. The court applied the general test that a participant in an active sport breaches a legal duty to other participants only if he intentionally injures the other participant or engages in conduct that is so reckless as to fall completely outside the range of ordinary activity for that particular sport. In other words, as between coparticipants of a sport, ordinary negligence is generally insufficient to impose liability. Because the plaintiff relied solely on a theory of negligence, the claim necessarily failed. After also rejecting the plaintiff’s alternative arguments, the court upheld the summary judgment.
Here, liability may be imposed if defendant increased the risk to plaintiff beyond those inherent in the sport.
In Branco, the defendant designed and operated a bicycle motocross park. It and others sponsored a motocross race. The race course included bumps, jumps, turns, straightaways, and obstacles. In particular, the race course offered what was referred to as the “million dollar jump” or the “million dollar doubles,” which consisted of two hills. As he tackled the “million dollar jump,” the plaintiff wheelied the jump, fell, and suffered serious injuries.In identifying certain characteristics of the “million dollar jump,” the plaintiff’s expert stated that the slope of the first hill placed the cyclist in an extremely unbalanced position. The expert also stated that the distance between the hills required the cyclist to travel at a very high rate of speed to clear the second hill. According to the expert, the faulty design of the “million dollar jump” caused the plaintiff’s accident.
The court observed: “It is not unreasonable to expect a [motocross] course to refrain from utilizing jumps which by design create an extreme risk of injury. Certainly the jumps, and falls, are inherent to the sport, and under the doctrine of primary assumption of risk, there is no duty to eliminate the jumps entirely, and no duty to protect from injury arising from reasonably designed jumps. However, the sport does not inherently require jumps which are designed in such a way as to create an extreme risk of injury.” (Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at p. 193.) It resolved that, “premised on the duty not to utilize dangerously designed jumps, this case falls under the secondary assumption of risk category, and issues pertaining to [the plaintiff’s] comparative fault are for the trier of fact to decide.” (Ibid.)
Defendant has simply not demonstrated that “under no hypothesis can plaintiff prove defendant did increase the inherent risks of [off-road motorcycling].” (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 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].) Again, while SAR may apply here, PAR does not.
Hazardous Recreational Activity Immunity
Section 831.7 provides: “(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity . . . for any damage or injury to property or persons arising out of that hazardous recreational activity. [¶] (b) As used in this section, ‘hazardous recreational activity’ means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator. [¶] ‘Hazardous recreational activity’ also means: [¶] . . . [¶] (3) . . . off-road motorcycling or four-wheel driving of any kind . . . . [¶] (c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following: [¶] (1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose. [¶] . . . [¶] (3) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement utilized in the hazardous recreational activity out of which the damage or injury arose.”
To show a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) As a result, where a defense has several elements, lack of substantial evidence on any element bars relief “even if the plaintiff failed to introduce a scintilla of evidence challenging that element.” (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.) A defendant cannot base its showing on plaintiff’s lack of evidence to disprove its claimed defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 472.)
Certainly, defendant has shown that immunity might apply given that plaintiff’s injury arose from his participation in a statutorily defined hazardous recreational activity. But section 831.7 also provides for exceptions to the immunity. Reduced to its essence, section 831.7 simply states that a plaintiff’s participation in a hazardous recreational activity does not result in immunity where the public entity’s negligence causes the plaintiff’s injury. (Perez v. City of Los Angeles (1994) 27 Cal.App.4th 1380, 1383.) Thus, as a practical matter in a case such as this one, a defendant cannot establish the elements of section 831.7 immunity without negating the breach element of the plaintiff’s section 835 cause of action. As we have mentioned (ante, fn. 5), defendant addressed the “dangerous condition” element in his motion for summary judgment but not the “breach” element. It has therefore failed to establish section 831.7 immunity.
Trail Immunity
Section 831.4 provides in part: “A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: [¶] (a) Any unpaved road which provides access to . . . riding, including . . . all types of vehicular riding . . . . [¶] (b) Any trail used for the above purposes.”
Defendant principally relies on photographs of the sediment basin area, the use of the sediment basin area, and plaintiff’s testimony describing a trail, finger, or offshoot where dirt was packed down as if people had ridden through. It then argues that section 831.4 does not require that trails be marked or designated. Plaintiff counters that the question is at least a triable issue of fact in this instance. We agree with plaintiff.
Whether a property is a trail depends on a number of considerations, including accepted definitions of the property (Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 609 (Carroll), the purpose for which the property is designed and used, and the purpose of the immunity statute (Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097, 1103).
First, the dictionary definition of a trail is “ ‘a marked or established path or route.’ ” (Carroll, supra, 60 Cal.App.4th at p. 609.) Though defendant is correct that section 834.1 does not require that a trail be marked, a reasonable trier of fact could nevertheless conclude that plaintiff was not on a trail because the “trail” in this case was unmarked and located in a park having marked trails where visitors were required to stay on marked trails. Similarly, a reasonable trier of fact could conclude that, in spite of its use, the “trail” in this case was not “established” because the Park’s rules forbid visitors from traveling thereon.
Second, the “trail” in this case was not designed for a recreational purpose given that the sediment basin was designed to manage soil erosion and rainwater runoff and the surrounding area was unmarked, i.e., off limits to visitors. Moreover, a reasonable trier of fact could conclude that the “trail” in this case was not used for a recreational purpose given that all uses were illicit. Referring to the area in question and acknowledging that visitors drove there, Martinez testified: “It’s not a trail.” (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 418 [the purpose for which trail is used “is ordinarily viewed as a factual issue, but it becomes a question of law if only one conclusion is possible”].)
Third, the purpose of trail immunity is to encourage public entities to open their property for recreational use. (Armenio v. County of San Mateo, supra, 28 Cal.App.4th at p. 417.) Public entities will not be inclined to close off-road parks if they were exposed to liability for accidents like the one here. They would more likely be encouraged to enforce their own rules that specify where recreation in the park is permitted.
Disposition
The judgment is reversed. The trial court is directed to enter an order denying defendant’s motion for summary judgment. Plaintiff is awarded costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.