CALIFORNIA - Claim for Motorcycle Injuries Held Barred by Assumption of Risk

OFF THE WIRE
http://www.metnews.com/articles/2011/amez102811.htm
Claim for Motorcycle Injuries Held Barred by Assumption of Risk

By KENNETH OFGANG, Staff Writer

Claims by a couple injured during a charity motorcycle ride that the event organizer took inadequate steps to ensure rider safety are barred by the primary assumption-of-risk doctrine, this district’s Court of Appeal ruled yesterday.
Div. Eight ruled that Los Angeles Superior Court Judge Thomas. McKnew was correct in granting summary judgment to Los Angeles Harley Davidson, Inc. Robert and Nancy Amezcua sued the South Gate dealership for injuries they sustained in the 2006 Pursuit for Kids Toy Drive, which was held around Thanksgiving.
The parties agreed on the material facts of the dispute.
Robert Amezcua was an experienced rider who had participated in several organized rides, including prior versions of the toy ride. Although he had registered and signed a release in order to participate in previous rides, he joined the 2006 ride without doing so.
Riders gathered at the dealership and heard some opening remarks by a member of the county police. That officer, and another officer dressed as Santa Clause, then got into a marked vehicle and led a procession of anywhere between 75 and 200 motorcycles, including the one driven by Robert Amezcua with Nancy Amezcua seated behind him, along a route that included the 105 and 110 Freeways and ended at Harbor UCLA Medical Center in Torrance.
The motorcycles all rode in the same line on the freeways.
Freeway Collision
The Amezcuas were injured when their motorcycle collided with a van that swerved into their lane on the 110 Freeway, near the 91 Freeway. The van driver said that he was startled by the roar of the motorcycles behind him and swerved in an attempt to avoid hitting a vehicle in front of him.
The driver said he hit the other vehicle, and at that moment, a motorcycle “also came in.” He said he didn’t “know how they fell also at the same time.”
The Amezcuas’ complaint alleged that the dealership breached its duty of care in organizing the ride, and that it was grossly negligent in doing so. McKnew, however, granted summary judgment both under the primary assumption of risk doctrine and on the ground that the plaintiffs had waived any liability, since they knew as a result of their past participation that the dealership required a release from all participants, even though they did not sign one on this occasion.
The plaintiffs also attempted to sue Los Angeles County, claiming the county police had taken on a duty to supervise the ride and failed to perform it adequately. But they failed to file a timely claim, and their petition for leave to sue, based on their attorney’s allegedly belated discovery that the Los Angeles County Police—formerly the Office of Public Safety—was a specific law enforcement agency and was directly involved with the ride, was denied in the Superior Court.
Cross-Complaint
That denial was affirmed by the Court of Appeal in an unpublished opinion in 2009. Los Angeles Harley-Davidson cross-complained against the county, alleging that any liability on the part of the dealership was secondary to that of the county, based on the negligence of the county in planning, organizing, escorting, and executing the route.
Justice Laurence Rubin, in his opinion yesterday for the Court of Appeal, said the assumption of risk doctrine applies, and fully bars the plaintiffs’ claims.
Under Knight v. Jewett (1992) 3 Cal.4th 296, a voluntary participant in a recreational activity cannot recover damages for injury from a co-participant or a sponsor or organizer of the activity if the injury stems from a risk inherent in the activity and the defendant does nothing to increase that inherent risk.
The doctrine has been applied to a variety of contact and non-contact sports, including non-competitive activities such as organized bicycle riding and participation in the annual Burning Man Festival, where the unsuccessful plaintiff in a 2009 case was burned when he got too close to the bonfire that caps the annual eight-day event north of Reno.
While no previous case has considered the rule in the context of “organized, noncompetive recreational motorcycle riding,” Rubin acknowledged, it has been applied to analogous enterprises.
“Participating in an organized motorcycle ride along public highways with large numbers of riders is more similar to an organized bicycle ride than it is to being a mere passenger in a boat, a recreational dancer or a lone motorcyclist,” the jurist wrote. “Like the risk of being burned while participating in the Burning Man Festival ritual, the risk of being involved in a traffic collision while riding in a motorcycle procession on a Los Angeles freeway is apparent.”
Rubin also rejected the argument that Los Angeles Harley-Davidson increased the inherent danger by failing to arrange a police escort for the motorcyclists.
The plaintiff, Rubin noted, had acknowledged in discovery that not all organized motorcycle rides have police escorts, and that he participated in several that did not. A rider therefore has no expectation that a particular event will have an escort, so the lack of one does not increase the danger inherent in the ride, the justice reasoned.
He distinguished In Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, which held that a claim against the organizer of a marathon in which a participant suffered a seizure was not barred, based on evidence the defendant had increased the risks inherent in organized long-distance running by failing to provide hydration.
The evidence in Saffro, Rubin noted, showed that marathoners routinely expect to provided with water stations along the course. In the Amezcuas’ case, the justice contrasted, “[t]here was no evidence that the absence of a police escort increased the inherent danger of riding in an organized motorcycle ride” nor “that anything less than closing the freeway to other traffic would have mitigated the risks.”
Attorneys on appeal were David Hoffman for the plaintiffs and Robert D. Daniels and Crystal S. Yagoobian of Manning, Leaver, Bruder & Berberich for the defendant.
The case is Amezcua v. Los Angeles Harley-Davidson, 11 S.O.S. 5802.