Branco v. Kearny Moto Park, Inc.

• Decision Date: 28 July 1995
• Docket Number: No. D019365,D019365
• Citation: 43 Cal.Rptr.2d 392,37 Cal.App.4th 184
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 6243, 95 Daily Journal D.A.R. 10,195 Brandon Lee BRANCO, Plaintiff and Appellant, v. KEARNY MOTO PARK, INC., et al., Defendants and Respondents.

Page 392

43 Cal.Rptr.2d 392

37 Cal.App.4th 184, 95 Cal. Daily Op. Serv. 6243,

95 Daily Journal D.A.R. 10,195

Brandon Lee BRANCO, Plaintiff and Appellant, v. KEARNY MOTO PARK, INC., et al., Defendants and Respondents.

No. D019365.

Court of Appeal, Fourth District, Division 1, California.

July 28, 1995.

Review Denied Nov. 16, 1995.

Girardi and Keese and Robert W. Finnerty, Los Angeles, for plaintiff and appellant.

Shifflet, Walters, Kane & Konoske, Douglas F. Walters and William T. Pascoe, San Diego, for defendants and respondents.

HUFFMAN, Associate Justice.

Brandon Lee Branco (hereafter Branco) appeals from a summary judgment in favor of Kearny Moto Park, Inc. (hereafter KMP), Debbie Badders, Jerry Badders, the American Bicycle Association (hereafter ABA), and the City of San Diego (hereafter sometimes referred to collectively as defendants) ¹ arising from Branco's complaint alleging, inter alia, that the negligent design of an expert caliber jump at KMP's bicycle motocross (BMX) course caused him to suffer injury. Premised on the duty of a sponsor of a sports activity not to increase the risks inherent in a sport, we hold there is a triable issue of fact whether KMP's jump was negligently designed. Accordingly, we reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 19, 1991, 17-year-old Branco, while racing his bicycle on KMP's BMX course, was injured when his bicycle crashed and struck the side wall of the landing area of an expert caliber jump. ²

KMP is a nonprofit, mutual benefit corporation, and (according to a declaration submitted by one of KMP's officers) its officers, who design and operate the moto park, serve on a volunteer basis. ³ KMP's promotional literature indicates that riders race according to age and skill class; new riders can learn and race safely with other new riders; and as they gain experience, they move up in skill class. ⁴ KMP also provided opportunities for the participants to learn riding techniques from professional BMX racers. ABA's promotional literature claimed BMX was "the safest of all the action youth sports." ⁵

The parties agreed that by its nature, BMX racing includes bumps, jumps, turns, straight-aways and obstacles. The million dollar jump, on which Branco was injured, is also referred to as the "million dollar doubles", and consists of two hills, described by plaintiff's attorney as "two bumps joined together in a saddle-like configuration".

Branco had several years experience riding BMX bicycles, ⁶ and he had had numerous prior falls from his bicycle, including one which resulted in a broken collarbone when he misjudged a street curb and flipped over the handlebars. He suffered the injury at KMP when he "wheelied" ⁷ the "million dollar jump" at the BMX course. He had intended to "roll" ⁸ the million dollar jump, since doing a wheelie would be "stupid" because it would slow him down, ⁹ but instead he found himself doing a wheelie. Prior to his injury, he had never wheelied the million dollar jump before, but had rolled it, and had never had any problems with it. Slower speed and more control and skill is required to wheelie rather than roll a jump. A couple of times, he had seen other riders wheelie up the million dollar jump, but did not observe them have any difficulties. He had seen people "buckle" ¹⁰ and almost lose control on the second part of the million dollar jump. Brandon thought "jumping" the million dollar jump was too dangerous, ¹¹ but he did not think doing a wheelie was too dangerous.

Defendants' expert declared that each BMX track may incorporate its own specific design, and the jumps are designed so that they may be traversed by either riding over them, or jumping over them by making the bicycle airborne. In his opinion, KMP's jumps complied with the guideline that all jumps could either be ridden over or jumped by making one or both wheels airborne. Further, the president of the ABA declared that the ABA sanctions tracks, each sanctioned track must comply with certain rules and regulations, and in his opinion the jumps at KMP were "such that can be expected at any BMX track."

In contrast, Branco's expert identified the following characteristics of the million dollar jump. The first hill of the jump is too steep for the use to which it was put; its 63 degree angle combined with the curvature of the hill creates an 80 degree angle; the steepness of the angle puts the rider at extreme risk because the rider's center of gravity tends to lift up as he approaches the jump, which puts the rider in an extremely unbalanced position. Second, the distance between the two hills of the jump is so great that the cyclist has to be at a very high rate of speed to make the second jump. ¹² The expert opined that both of these factors tend to put riders at risk or "at the very end of their envelope of ability."

Branco's expert opined that the slope of the first hill of the jump led to the accident since it caused the rider's center of gravity to rise too abruptly. The expert elaborated that most BMX tracks he had seen, which include a jump where the rider aims to get skyborne, will have a very gentle approach slope to the jump, i.e., a 15 to 20 degree angle with a very long lead-up, and then an abrupt drop-off on the other side, which gives the rider the feeling of jumping the bike, but does not put him at risk. KMP's million dollar jump was the only one he could remember seeing with such an abrupt change in slope.

In granting the motion for summary judgment, the trial court acknowledged that Branco's subjective knowledge of the risk was irrelevant to the issue of duty under Knight v. Jewett (1992) 3 Cal.4th 296, 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696 (discussed below). The court determined that defendants owed no duty to Branco, stating that the deposition testimony of plaintiff's expert did not create a triable issue of fact as to whether defendants increased the risks above those inherent to BMX racing. The court also noted that Branco was a participant rather than a student being coached by the defendants.

ANALYSIS

A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ.Proc. § 437c, subd. (c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) The evidence of the moving party should be strictly construed, and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko, supra, at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. (Ibid.) On appeal from a summary judgment, our review is de novo, and we independently review the evidence submitted. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1396, 14 Cal.Rptr.2d 679; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1513, 285 Cal.Rptr. 385.)

As we explain below, we hold there is a duty to refrain from utilizing BMX jumps which by design pose an extreme risk of injury, and there is a triable issue of material fact whether that duty was breached by virtue of the design of the million dollar jump.

In Knight v. Jewett, supra, 3 Cal.4th at pages 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696, our Supreme Court ¹³ held that the doctrine of assumption of risk involves two components, primary and secondary assumption of risk. With primary assumption of risk, the defendant owes no duty to the plaintiff and the doctrine operates as a complete bar to recovery. With secondary assumption of risk, the defendant owes a duty, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty. The doctrine of secondary assumption of risk is part of the comparative fault scheme where the trier of fact considers the relative responsibility of the parties in apportioning the loss resulting from the injury.

Accordingly, we first evaluate whether the defendant's conduct breached a legal duty of care to the plaintiff, i.e., whether the defendant had a legal duty to avoid the conduct or to protect the plaintiff against a particular risk of harm. (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-317, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The nature of a defendant's duty in the sports context depends heavily on the nature of the sport itself. (Ibid.) Additionally, the scope of the duty frequently depends on the defendant's role in, or relationship to, the sport. (Id. at pp. 316-317, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

As recognized by the trial court, Knight sets forth the following standard to guide the determination of the duty of an operator of a sports facility: ¹⁴ "Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. " (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics added.)

Knight utilizes the example of a ski mogul to illustrate a risk inherent in a certain sport as to which there is no duty of care. ¹⁵ That is, although "moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them." (Knight v. Jewett, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) This duty analysis is not dependent on the plaintiff's subjective knowledge or appreciation of the risk. Thus, a defendant owes no duty to a plaintiff who falls while skiing over a mogul, even if he or she is...