Buchan v. U.S. Cycling Federation, Inc.

• Decision Date: 30 January 1991
• Docket Number: No. B037872,B037872
• Citation: 277 Cal.Rptr. 887,227 Cal.App.3d 134
• Parties: Barbara BUCHAN, Plaintiff and Respondent, v. UNITED STATES CYCLING FEDERATION, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 887

277 Cal.Rptr. 887

227 Cal.App.3d 134

Barbara BUCHAN, Plaintiff and Respondent, v. UNITED STATES CYCLING FEDERATION, INC., Defendant and Appellant.

No. B037872.

Court of Appeal, Second District, Division 7, California.

Jan. 30, 1991.

Review Denied May 2, 1991.

Johnson, J., filed a dissenting opinion.

Thomas & Price, Allan I. Shatkin, Everett S. Hinchcliffe, Glendale, for defendant and appellant.

James P. Carr, Los Angeles, Kelly, Herlihy & Bane, Andrew N. Chang, San Francisco, for plaintiff and respondent.

FRED WOODS, Associate Justice.

This is an appeal by appellant/defendant United States Cycling Federation, Inc. (USCF) from the judgment of the Los Angeles County Superior Court, the Honorable Irwin J. Nebron, Judge presiding in favor of respondent/plaintiff, Barbara Buchan (Buchan). Reversed.

I. FACTS AND PROCEEDINGS BELOW

On July 7, 1983, Buchan filed a form complaint for personal injury against defendants On October 1, 1986, USCF filed its "First Amended Answer to Unverified Complaint." Included in the affirmative defenses was an allegation that Buchan assumed all the risks, hazards and dangers, and that Buchan expressly waived and relinquished all legal rights to seek damages from USCF for her injuries.

USCF, Self Magazine (Magazine), and 50 fictitious defendants alleging, inter alia, that "[d]efendants and each of them sponsored a bicycling race at which the plaintiff was a participant. The defendants, and each of them, negligently failed to supervise and monitor the bicycle race with the result that the plaintiff was involved in a collision with other cyclists suffering the injuries and damages complained of."

Buchan's complaint arises out of an accident that occurred on July 9, 1982, during a bicycle race from Malibu to Westlake Village. The race was part of a four race competition to select the United States Women's World Road Race Team. The four-race series was sponsored by Conde Nast Publications, Inc. ¹ (Nast), publishers of Self Magazine, and was named the Self Magazine Cycling Circuit. Defendant, USCF, was the sanctioning body for the races. Buchan was involved in a fall during the race and received head injuries.

Buchan's superior court form complaint includes three causes of action. The first and second causes of action are couched in terms of general negligence against USCF, Magazine, and Does 1 to 25. The first cause of action for general negligence alleges that defendants negligently supervised and monitored the bicycle race with the result that plaintiff was involved in a collision with other cyclists. The second cause of action for general negligence alleges that defendants negligently failed to require, recommend or warn that participants in the bicycle race should wear hardshell protective helmets. This second cause of action further alleges that defendants negligently sanctioned the use of an unsafe leather helmet. The third cause of action is couched in terms of product liability against Does 26 through 50. It describes the defective product as a leather bicycle helmet.

On October 9, 1986, Magazine filed a motion for summary judgment. The basis for the summary judgment motion was the agreement and release of liability signed by Buchan at the time she applied to USCF for the 1982 renewal of her racing license and the release that she signed as part of her application for entry in this Self Magazine Cycling Circuit series of races. On January 8, 1987, the court, the Honorable Martha Goldin, Judge presiding, granted Magazine's motion for summary judgment, based upon the releases signed by plaintiff.

On December 10, 1986, USCF filed a motion for summary judgment, based upon the same releases as in Magazine's motion for summary judgment. On April 2, 1987, the court, the Honorable Marvin D. Rowen, Judge presiding, granted USCF's motion for summary judgment. The court granted the motion for summary judgment based upon Okura v. United States Cycling Federation ², ruling that "the summary judgment motion must be granted." On April 8, 1987, Judge Rowen vacated his April 2, 1987, order granting the motion for summary judgment following further oral argument, and then denied the motion for summary judgment. Defendant's counsel argued that the same issues were raised as in Magazine's motion before Judge Goldin. This court infers from the colloquy revealed in the transcript of proceedings that Jury trial commenced on July 7, 1988. Although no substantial evidence issue has been raised on appeal, we deem it advantageous to not only present a summary of the procedural history of the case but a synopsis of the pertinent evidence herein for background purposes to enhance an understanding of our reasons for reversing the judgment.

                Judge Rowen felt that international cycling affects the public interest and distinguished Okura on that basis. 3  Judge Rowen then ruled as follows:  "The Court is going to change its position and enter as its final ruling in this matter the denial of the motion for summary judgment."
                

Testimony at time of trial established that Buchan got involved in bicycle racing for the first time in 1975, and first raced in competitive events as a cyclist in 1975. She received her first USCF license in 1975. By 1981, Buchan was a Category II (highest classification) rider. Buchan had participated in 100 races and considered herself to be an experienced road racer. Buchan testified that she knew there were risks involved in cycling.

Witness, Jolanta Goral, testified that Buchan was an "elite rider," that falls and crashes in bicycle races are common, that she agreed with Buchan's testimony that in 75 percent of bicycle races there are crashes involving the fall down of multiple riders, and that good bicycle riders are involved in crashes, which is part of the sport.

Buchan testified that her goal was to make the Olympic team in bicycling and that most of the female riders in 1982 had the same goal. Buchan admitted that it was her signature on the 1982 renewal application.

There are falls in at least 75 percent of the races. Seventy-five percent of the riders that Buchan is aware of have broken a collarbone by falling. Buchan had two prior racing falls. Ninety percent of the riders get broken collarbones. Buchan further testified as follows:

"Q. You did realize that falls are a common occurrence?

"A. Falls, yes.

"Q. And I think you said they occur maybe 75 percent of the time?

"A. Yes."

Witness Ronald Smith, Ph.D., a sport's psychologist, stated that there is a high degree of risk in bicycle racing. From a reading of Buchan's deposition transcript, he determined that she was aware of the risk of personal injury that existed in bicycle racing, and was aware of the risk of serious head injury.

Witness Deborah Winsor, a participant in Buchan's race, acknowledged the risks of bicycle racing, and indicated that bicycling can get pretty rough.

Witness Lester D. Earnest, a USCF member since 1973, testified that there were certain inherent dangers in participating in cycling races, including the risk of significant personal injuries, head injuries, and even death.

Witness Paul Pearson testified that injuries are common in bicycle racing, and all riders realize the risk of injury. Witness Edward Borysewicz, a cycling coach, testified that crashes and falls are common; riders shouldn't race unless they are willing to accept the risks.

Otto Wenz another witness testified that head injuries are a known hazard of cycling.

On July 20, 1988, USCF, made a motion for a directed verdict, pointing out that the subject activity does not affect the public interest; nobody has to go out there and undertake this risk. The court, the Honorable Irwin J. Nebron, Judge presiding, denied the motion, without prejudice. The court distinguished Okura, since the race was the only way to get to the Olympics. Defense counsel argued that it was decided as a matter of law that bicycle racing is not a matter affecting the public interest. The court concludedS "I think that this court has to give weight to the Ordway ⁴ case here."

Witness Mary Pieper testified that injuries are common, it is common that a number of riders go down, and she accepts the proposition that accidents and injuries are one of the inherent risks of the sport. Pieper decided to get out of bicycle racing because of the risks of injury. Counsel stipulated that if Mary Pieper were called to testify pertaining to the releases, she would have testified that she had read the subject releases, knew what was in them, expected to be bound by them, and expected them to prohibit her from bringing a lawsuit.

Witness, Robert Ross, a mechanical engineer and USCF official testified that crashes of the instant variety are common and a part of the sport. Ross told Buchan on several occasions that she should wear a better helmet, and she acknowledged that, but said she didn't like to since it was too heavy and too hot.

The trial judge, Irwin J. Nebron, reviewed the transcript of proceedings on USCF's motion for summary judgment before Judge Rowen, stating that this obviously was "a very, very close issue in his mind." Judge Nebron ruled, as a matter of law, that all six Tunkl ⁵ factors had been satisfied. The court ruled that under Ordway a question of fact was presented, and the jury would have to determine if Buchan had acted reasonably or unreasonably. The court was of the opinion that Okura was distinguishable. The court refused defendant's special instructions 1, 1A, 1B, 3, and defendant's 4.30 (Express Assumption of Risk). ⁶ In regard to the jury instruction on implied assumption of risk, Buchan's counsel agreed that falling off a bicycle and hitting your head is within the inherent risks of bicycling. Buchan's counsel argued that Buchan's conduct was not "entirely reasonable."

In closing argument, Buchan's counsel conceded that Buchan assumed the risks of bicycle racing, but argued that she only chose selective...