From Casetext: Smarter Legal Research

Reeves v. Championship Auto Racing Teams

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 21, 2003
No. E032859 (Cal. Ct. App. Nov. 21, 2003)

Opinion

E032859.

11-21-2003

JEANNIE L. REEVES as Special Administrator, etc., et al., Plaintiffs and Appellants, v. CHAMPIONSHIP AUTO RACING TEAMS, INC., et al., Defendants and Respondents.

Keesal Young & Logan, Samuel A. Keesal, Jr., Scott T. Pratt and Mauricio J. Rauld for Plaintiffs and Appellants. Hewitt & Prout, Stephen L. Hewitt, Erica S. Arouesty and R. Mac Prout for Defendants and Respondents.


Plaintiffs Jeannie L. Reeves, as special administrator of the estate of Gregory William Moore, and Richard Paul Moore (collectively Plaintiffs) sued defendants Championship Auto Racing Teams, Inc. (CART) and California Speedway Corporation (CSC, collectively Defendants) claiming that they were responsible for Gregorys death during a CART-sanctioned race at the CSC track. Plaintiffs appeal from a judgment entered after Defendants motion for summary judgment was granted on the grounds that the action is barred by the doctrines of primary and express assumption of the risk. Plaintiffs claim that these doctrines do not apply because Gregorys death did not result from an inherent risk of the sport of auto racing, because defendants increased the risks inherent in auto racing, and because defendants acted in a grossly negligent and reckless fashion. We affirm.

Gregory Moore and Richard Moore will hereafter be referred to by their first names, not out of any familiarity or disrespect, but to ease the burden on the reader. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)

FACTS AND PROCEDURAL HISTORY

Gregory began his racing career in go-carts at the age of 10 and progressed to automobiles at the age of 15. At age 16 he sought and obtained leave of court to sign a release enabling him to participate as a professional driver in Formula 2000 races in the United States (Gregory was a Canadian citizen). A successful racer, Gregory applied to participate in CART-sponsored auto racing events every year beginning in 1993 when he was 17 years old. On October 31, 1999, Gregory competed in the Marlboro 500 at the California Speedway, the 72nd start in his CART racing career, where his success had continued. While exiting turn two in lap 10 of that race, Gregory lost control of his vehicle, which entered a grassy area of the infield, became airborne and ultimately collided with a concrete retaining wall. Gregory died as a result of this crash. Richard was Gregorys manager and was present at the time of the crash.

Plaintiffs filed their complaint on October 30, 2000, against Defendants and others not party to this appeal. After several demurrers, they filed their operative third amended complaint alleging five causes of action for breach of duty, wanton and reckless misconduct, breach of implied contract (against CART only), wrongful death and negligent infliction of emotional distress. Defendants thereafter filed motions for summary judgment, or in the alternative for summary adjudication, claiming that each of Plaintiffs causes of action was barred by primary and express assumption of the risk. The trial court apparently allowed, over Defendants objection, the parties to file supplemental briefs and additional evidence, and the parties each objected to the others evidence prior to the hearing on August 21, 2002. After taking the motions under submission, the trial court issued a ruling on September 5, 2002, granting summary judgment to both Defendants on the grounds (1) that Gregorys injury resulted from a risk inherent in the sport of auto racing, the doctrine of primary assumption of the risk thus barring the action, (2) that Defendants failure to provide features that would have improved safety did not rise to the level of reckless or wanton misconduct, (3) that express assumption of the risk through executed releases also barred the action, and (4) that Plaintiffs had conceded with respect to their cause of action for breach of implied contract. Judgment was entered for Defendants on October 4, 2002. This appeal followed.

In addition to appealing from the summary judgments, Plaintiffs also purported to appeal from orders granting Defendants demurrers without leave to amend to the cause of action for battery in the first amended complaint. However, they have abandoned that claim of error by failing to raise it in their opening brief. (Marocco v. Ford Motor Co. (1970) 7 Cal.App.3d 84, 87, fn. 1.)

DISCUSSION

A. Standard of Review

The purpose of summary judgment "is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 844 (Aguilar).) Our de novo review is governed by Code of Civil Procedure section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issue to be addressed. (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121.) A defendant moving for summary judgment bears the burden of persuasion that there is no triable issue. This burden is met by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar , supra, 25 Cal.4th at pp. 849-851, 854-855.)

B. Defendants shifted the burden to plaintiffs to show a triable issue of material fact and they failed to do so.

Plaintiffs alleged causes of action for breach of duty, wanton and reckless misconduct, breach of implied contract, wrongful death and negligent infliction of emotional distress. They have not challenged the trial courts ruling with respect to their claim for breach of contract. Therefore we focus solely on the remaining causes of action. Defendants argued that each of them is barred by the doctrines of express and primary assumption of the risk.

1. Express Assumption of the Risk

An express assumption of the risk of injury can be established by a valid release and once established is a defense to liability claims based upon any such injury. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1374-1375 (Allan).) Defendants established that Gregory and Richard released them from liability for the injuries claimed in the first amended complaint. Both Gregory and Richard had signed numerous releases over several years. Specifically, on December 31, 1998, Gregory signed a release including the following language:

IN CONSIDERATION of my being granted a membership, license and/or competition privileges in Championship Auto Racing Teams, Inc. (hereinafter known as CART) sanctioned EVENT(S), as a CART, American Racing Series, Inc. and/or Atlantic Championship Series participant or being permitted to compete, practice, officiate, observe, work for, or for any purpose participate in any capacity in future EVENT(S), . . . I, on behalf of myself, my personal representatives, spouse, assigns, heirs, and next of kin:

[¶] . . . [¶]

2. HEREBY RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE Championship Auto Racing Teams, Inc., American Racing Series, Inc., Atlantic Championship Series, the promoters, organizers . . . track operators, track owners . . . and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) . . . for the purpose herein referred to as RELEASEES[,] FROM ALL Liability TO ME, my personal representatives, spouse, assigns, heirs and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO ME OR MY PROPERTY OR RESULTING IN MY DEATH ARISING OUT OF OR RELATED TO THE EVENT(S), from any cause whatsoever, including, without limitation, the failure of anyone to enforce rules and regulations, the failure to make inspections, the condition of any portion of the track or premises, defective products, and any act or omission of the RELEASEES or any of them or any other act W[H]ETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE . . . .

[¶] . . . [¶]

4. HEREBY ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

5. HEREBY ACKNOWLEDGE that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. . . .

6. HEREBY AGREE that this PARTICIPANT RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT extends to all acts of negligence by the RELEASEES, . . . and is intended to be as broad and inclusive as is permitted by the laws of the Municipality, Province, State and/or Country in which the EVENT(S) is/are conducted . . . .

7. HEREBY AGREE this Agreement shall be binding upon and enforceable against me, my personal representatives, spouse, assigns, heirs, and next of kin without limitation and shall be in full force and effect for all EVENT(S).

[¶] . . . [¶]

I HAVE READ THIS ANNUAL RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE, OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW. . . .

Richard signed an identical release on January 4, 1999. Gregory also signed a similar release specifically pertaining to CSC. Plaintiffs do not contest that the releases covered the race in question. Rather, they have mounted but one challenge to the validity of these releases on appeal. They claim that the releases cannot apply to exempt Defendants from liability for gross negligence, which they have demonstrated.

The language of the releases themselves is broad and applies to all injuries "W[H]ETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE," and "all acts of negligence by the RELEASEES . . . ." Generally, such exculpatory agreements are invalidated only when they are against the public interest, and agreements in the context of recreational sports have not, as a rule, been invalidated on that basis. (Lund v. Ballys Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739; Allan, supra, 51 Cal.App.4th at p. 1373.) Civil Code section 1668 invalidates, as against public policy, contracts "which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another . . . ." However, Civil Code section 1668 applies only to contracts that violate the public interest (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598), and since that is not the case with releases involving sports participation the statute is, as a rule, inapplicable to those contracts.

Plaintiffs cite 1 Witkin, Summary of California Law (9th ed. 1987), section 631, pages 568-569, for the proposition that Civil Code section 1668 prohibits all releases that purport to exempt parties from liability for their gross negligence. However, the plain language of the statute does not make that exception, nor does Witkin cite any case that prohibits releases for gross negligence. Rather, each of the cases cited refers to fraud, intentional injury or violation of a statute, all specifically listed in Civil Code section 1668. Plaintiffs also cite a single California case, Farnham v. Superior Court (1997) 60 Cal.App.4th 69, 74, for the same proposition. However, that case suffers from the same defect as Witkin. Two of the cases it cites refer to fraud or violation of a law. The third case, Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, simply invalidated an exculpatory clause that purported to release a defendant from all liability, including for the conduct exempted by Civil Code section 1668. Because the release was too broad, the court held that requiring prospective employees to sign it as a condition of employment was an improper attempt to enforce an illegal agreement. (Id . at p. 1154.) It does not stand for the proposition that an agreement purporting to exculpate a party from acts of gross negligence is invalid. Plaintiffs also cite authority from other jurisdictions, but as those cases do not attempt to interpret Civil Code section 1668, they have no possible application here.

Further, the concept of gross negligence, indeed the concept of any distinction between levels of negligent conduct, is not independently recognized in California, save for those instances where a specific type of negligent conduct is referred to in the language of a statute. (Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 328-330.) As the term "gross negligence" is not used in the statute in question, advocating the application of that concept in the instant circumstance is a position of dubious legitimacy. We conclude that Plaintiffs have failed to create a triable issue of material fact in their attempt to demonstrate that the releases cannot exempt Defendants from liability for their gross negligence.

Plaintiffs, without authority, lump the accusation of wanton and reckless misconduct with gross negligence in their argument that the release does not apply to such conduct. Wanton and reckless misconduct has been equated both with negligence, including gross negligence, and with willful conduct as the antithesis of negligence. (Schreefel v. Okuly (1983) 143 Cal.App.3d 818, 826-827; Johns-Manville Sales Corp. v. Workers Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, 931-932.) To the extent that the concepts are the same, the above analysis applies equally to claims of wanton and reckless misconduct, since they are only levels of negligence which are no longer recognized absent a specific application by law. To the extent that the concepts are different, unlike with gross negligence, Plaintiffs have not even attempted to cite any authority for the proposition that a person cannot contract to excuse another from wanton and reckless conduct that results in injury.

In addition, the only allegedly grossly negligent and/or wanton and reckless misconduct identified by Plaintiffs consists of Defendants alleged failure to take measures that they knew would enhance the safety of portions of the racetrack facility. As we will discuss more fully below, as a matter of law, when a risk is inherent in a sport a defendant has no duty to take any action to mitigate the dangers posed by that risk, even if the defendant has a feasible means to remedy the danger. (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 (American Golf).) In the releases themselves, Gregory admitted that auto racing involved risks that could result in serious injury and even death. In the absence of any duty to remedy the conditions that allegedly support the wanton and reckless conduct, the Plaintiffs cannot prove that the releases do not apply on this ground. (See, e.g., Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 [tort liability requires existence of duty].)

Finally, in their brief, Plaintiffs simply state that Defendants gross negligence and wanton and reckless misconduct "was amply demonstrated by the record below." However, the only citations to the record to support this contention of fact are (1) statements of opinion that safety was not a top priority among the operators of the California Speedway, and that profit was put ahead of safety, and (2) statements by CARTs president that CART had made poor decisions about safety issues. Gross negligence has been defined as "`"the want of even scant care or an extreme departure from the ordinary standard of conduct."" (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052.) Wanton and reckless misconduct involves no intention to do harm, but rather an intention to perform an act so unreasonable and dangerous that the actor knows, or should know, it will very probably cause harm. (Potter v. Firestone Tire & Rubber Co . (1993) 6 Cal.4th 965, 1017.) The evidence cited by Plaintiffs demonstrates nothing approaching this level of misconduct.

Plaintiffs opening brief is rife with this failure to adequately cite to evidence. Virtually every citation of fact in the brief provides a reference to a separate statement of material facts. This is a violation of California Rules of Court, rule 14(a)(1)(C), which requires litigants to point to actual evidence in the record. The separate statement is not evidence, but merely refers to evidence, which this court must then seek out on its own. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) "[I]t is counsels duty to point out portions of the record that support the position taken on appeal. The appellate court is not required to search the record on its own . . . . [A]ny point raised that lacks citation may, in this courts discretion, be deemed waived. [Citation.]" (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Plaintiffs failure in this case is particularly egregious in light of the length of the record, in excess of 1,500 pages.

Plaintiffs have not demonstrated the existence of a triable issue of material fact that would enable a jury to conclude that the releases do not constitute an express assumption of the risk and a consequent bar to each of their causes of action.

2. Primary Assumption of the Risk

Primary assumption of the risk exists in those instances where a legal conclusion is made that a defendant has no duty to protect a plaintiff from a particular risk. (Knight v. Jewett (1992) 3 Cal.4th 296, 308, 314-315 (Knight).) The determination whether or not a defendant has a duty to protect a plaintiff from a particular risk of harm depends heavily upon the nature of the activity in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity. (Id. at pp. 309, 314-315.) It is also a question of law for the court to decide. (Rodrigo v. Koryo Martial Arts (2002) 100 Cal.App.4th 946, 950.) The Knight court recognized that in the sports setting "conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself." (Knight, supra, 3 Cal.4th at p. 315.)

Defendants asserted that the doctrine of assumption of the risk as defined in Knight applies in this case because losing control of ones race car, leaving the racing surface, striking walls and other objects and suffering injury and even death as a result are inherent risks of the sport of auto racing. This point can hardly be argued. Anyone with a passing familiarity with auto racing knows that losses of vehicular control and resulting crashes are frequent and that injury and death are not uncommon. Further, the record is replete with acknowledgments of this fact and that it is common knowledge. Defendants argue that the risk of losing control of ones vehicle cannot be eliminated without altering the essential nature of racing, and Plaintiffs, whether because they focus on the wrong issue, or because it cannot be done, do not offer any suggestions to refute the point.

Plaintiffs cite Campbell v. Derylo (1999) 75 Cal.App.4th 823, Yancey v. Superior Court (1994) 28 Cal.App.4th 558, Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525 (Bushnell) and Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310 (Van Dyke ), for the proposition that conduct, and risks resulting from that conduct, are not inherent in a sport if prohibition of the conduct would not deter vigorous participation in the sport thereby altering its fundamental nature. In other words, if the defendant could have prevented or lessened the risk without altering the sport, the particular risk is not one inherent to the sport and liability should attach. Thus, they conclude that since Defendants could have made the track safer without altering the nature of auto racing, Gregorys injuries did not result from an inherent risk of the sport. This position is untenable for the following reasons.

First, Plaintiffs improperly define the issue by focusing on the risk of a certain level of injury, or by focusing narrowly on the specific mechanism that resulted in a certain level of injury, as opposed to the risk of the conduct or event leading to the injury or that set the mechanism into motion. This position does not withstand analysis as shown in the following example. Many horseback riders fall from horses. Some of those who fall suffer no injury as a result, while others suffer extreme injury and even death. One cannot, therefore, define the inherent risk of horseback riding as being injured from a fall, or as any particular mechanism of falling and landing, but must define the risk as falling from the horse. A similar thing can be said of auto racers. Many lose control of their vehicles. Some of those crash into other vehicles, some into the wall, yet others regain control without crashing. Some of those who crash sustain no injuries while others, sadly, are badly injured or die. Both of these circumstances occurred in the instant race, where a driver left the same spot of the track shortly before Gregory, flipped and crashed into the same wall, suffering only minor, if any, injury. Were we to define the inherent risk as being the risk of a certain level or mechanism of injury, the very same event, falling off ones horse or losing control of ones vehicle for example, would carry an infinite range of risk. Only luck would distinguish between two persons in identical positions, making one a defendant while the other was not. The doctrine of primary assumption of the risk should exempt any defendant who engages in a specific type of conduct from liability, not characterize the conduct differently based upon a result left completely to chance.

In addition, Plaintiffs cases are distinguishable. Campbell and Yancey involve regulating the conduct of a coparticipant rather than a recreation provider. Since the interrelationship between the plaintiff, the defendant and the activity is crucial to the determination of duty (Knight, supra, 3 Cal.4th at pp. 309, 314-315, 317), Campbell and Yancey are inapplicable to the case at bar. Similarly, Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, which deals with a coach-student relationship, is distinguishable, as are numerous baseball cases Plaintiffs cite that deal with stadium owner-spectator relationships as opposed to recreation provider-participant relationships.

Plaintiffs point out that in its analysis, the Bushnell court noted that "[a] defendant also may be charged with the duty to take such precautions as will prevent the risk without having a chilling effect on the nature of the activity." (Bushnell , supra, 43 Cal.App.4th at p. 530.) However,Bushnell also involved coparticipant behavior. Its discussion of recreation provider liability, which involves a different analysis, was therefore unnecessary, and its statements in that regard dicta. Further, a review of the analysis surrounding the quoted statement makes clear that the courts comment was tainted by the coparticipant analysis of Knight,supra , 3 Cal.4th 296.

With respect to Van Dyke, its holding was based primarily on a finding that the plaintiff had shown evidence creating a triable issue of material fact whether the ski resort had increased the inherent risk of colliding with a fixed object by its placement of that object. (Van Dyke, supra, 67 Cal.App.4th at p. 1317.) For reasons that we will explain below, Van Dyke is thus distinguishable from the instant case. Further, to the extent that it concludes that defendants were liable for failing to make the ski run safer, we believe that the holding is contrary to the overwhelming weight of authority that concludes that a recreation provider has no duty to mitigate against risks inherent in the activity to be engaged in, even when measures are available to make the activity safer.

"If a risk is inherent in a sport, the fact that a defendant had a feasible means to remedy the danger does not impose a duty to do so. (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 13 . . . .) A duty is not created because safer materials are available to remedy the danger. (Ibid. . . . Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52 . . . [youth baseball batting helmet constructed without a face guard]; Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 439 . . . [preseason football practice conducted without pads and helmets]; Ferrari v. Grand Canyon Dories [(1995)] 32 Cal.App.4th [248] at p. 257 [white water raft configured with metal frame superstructure].)" (American Golf , supra, 79 Cal.App.4th at p. 37.) Were we to adopt the Plaintiffs definition of inherent risk, the doctrine of primary assumption of the risk would virtually cease to exist for recreation providers since it is the extremely rare activity that cannot be made safer in one manner or another, especially with the 20/20 vision of hindsight. Participation in sporting activities would inevitably be chilled should facilities providers and event promoters cease to furnish their services due to uncertainty about their liability for any incident about which an argument could be made that some precaution could have lessened or prevented injury to a participant, where the event that caused the injury commonly occurs and is inherent in the activity.

We note that the record in this case clearly reflects that theories on how to achieve increased safety for auto racers are as numerous as those with products to sell, and that some "safety" improvements, including those that Plaintiffs urge should have been taken, may increase a certain danger while decreasing another. It also reflects a growing movement among drivers and racing professionals, at least those involved with the CART organization, to insist on greater attention to safety concerns and to uniformly evaluate the appropriateness of certain remedial measures. We believe that the policy of the laws of California supports this internal method of altering the likelihood of injury due to participation in a sport. In this fashion, the sport itself changes rather than being forcibly altered by decisions of the courts.

Still, "[a]lthough defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that [recreation providers] 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, supra, 3 Cal.4th at pp. 315-316; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 132.) Plaintiffs argue that primary assumption of the risk does not apply here because Defendants increased the inherent risks of auto racing by (1) having grass in the infield run-off area at turn two; (2) having a paved access road angled across the grassy area; (3) failing to install energy absorbing barriers on the concrete infield wall; and (4) angling the concrete infield wall towards the racing surface.

Plaintiffs attention is once again focused on the wrong inquiry as they continue to improperly define the inherent risk as the risk of death. While Plaintiffs evidence, both expert and otherwise, shows that altering the above conditions may have made the track safer and may have reduced or eliminated the injuries sustained in Gregorys crash, there is no evidence in the record that any of these conditions caused or increased the risk of the loss of control that resulted in the crash in the first place. That fact distinguishes this case from Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, Morgan v. Fuji Country USA, Inc., supra, 34 Cal.App.4th 127, and Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817 (overruled in part by Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1007-1011). In these cases the evidence showed that defendants increased the risk that a motorcyclist would lose control of his bike, that a golfer would be struck by a ball, and that a horse would trip, all risks inherent in the sports. Here the risk inherent in the sport is losing control of ones vehicle, and there is no evidence that any conduct on the part of Defendants either increased the risk that Gregory would lose control of his car, or caused him to do so.

Further, Plaintiffs are essentially arguing that Defendants failure to make the track safer increased the inherent risks of auto racing. We have already recognized that the law does not require recreation providers to make a sport safer when injury has resulted from an inherent risk. (American Golf, supra, 79 Cal.App.4th at p. 37.) No amount of expert testimony can alter that fact. Logically, if a defendant has no duty to make a sport safer for participants, and therefore is protected by the doctrine of primary assumption of the risk, it cannot be liable under an exception to that doctrine for the very same conduct. Patently, the exception would then swallow the rule.

Knight also recognized that conduct that is intended to cause harm or that is reckless cannot be excused merely because certain activities carry an inherent risk. (Knight, supra, 3 Cal.4th at p. 320.) Plaintiffs attempt to avoid the application of the defense of primary assumption of the risk by arguing that Defendants failure to improve the four concerns they identified, knowing that such improvements would lessen or eliminate the risk of injury, constitutes wanton and reckless conduct. Again, the fact that the law states that a defendant is under no duty to mitigate against or remedy dangers that arise from risks inherent in a sport (American Golf, supra, 79 Cal.App.4th at p. 37) is fatal to Plaintiffs argument. In order to establish the right to recover for reckless or wanton misconduct, one must first establish the existence of a duty, for if one has no duty to prevent injury to another, there can be no liability for an injury, regardless of the level of culpability. (See, e.g., People v. Young (1942) 20 Cal.2d 832, 837, quoting the Restatement of Torts.) Here again, Plaintiffs position would have the exception swallow the rule.

Further, reckless and wanton misconduct is that which "`involves a high degree of probability that substantial harm will result to [another]." (People v. Young, supra, 20 Cal.2d at p. 837.) The consequence that Gregory would die in a crash was not so inevitable as to transform Defendants failure to provide a safer track from negligence into recklessness. As Plaintiffs themselves pointed out, many drivers had lost control of their vehicles at this location on the track before, yet none of those incidents had resulted in serious injury or death. And, in the context of an exception to the defense of primary assumption of the risk, reckless conduct is that which is "totally outside the range of ordinary activity involved in the sport." (Knight, supra, 3 Cal.4th at p. 320.) Defendants demonstrated that it is not uncommon for racetracks to have the same "dangerous" conditions identified by Plaintiffs (in fact, Plaintiffs evidence demonstrates that many other tracks had these conditions). In response, Plaintiffs demonstrated that some tracks had been altered to mitigate the dangerousness of some similar conditions. However, even accepting as true that some tracks have been made safer, that does not create a triable issue of material fact that the identified conditions are "totally outside the range of ordinary activity involved in the sport" and therefore creates no triable issue that Defendants conduct was wanton and reckless. Because Plaintiffs did not demonstrate the existence of a triable issue of material fact that Defendants engaged in wanton and reckless misconduct, they did not show that their action should not be barred by the doctrine of primary assumption of the risk.

Plaintiffs also attempted to show that subsequent remedial measures had been taken at the California Speedway. However, Evidence Code section 1151 prohibits the introduction of such evidence to prove culpable conduct. None of the exceptions that Plaintiffs point out in their reply brief apply here because the only purpose for attempting to introduce subsequent remedial measures relevant to this appeal is to prove culpability.

DISPOSITION

The judgment is affirmed. Defendants to recover their costs on appeal.

We concur: HOLLENHORST, J., McKINSTER, J.


Summaries of

Reeves v. Championship Auto Racing Teams

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 21, 2003
No. E032859 (Cal. Ct. App. Nov. 21, 2003)
Case details for

Reeves v. Championship Auto Racing Teams

Case Details

Full title:JEANNIE L. REEVES as Special Administrator, etc., et al., Plaintiffs and…

Court:Court of Appeals of California, Fourth Appellate District, Division Two.

Date published: Nov 21, 2003

Citations

No. E032859 (Cal. Ct. App. Nov. 21, 2003)