Moser v. Ratinoff

• Decision Date: 31 January 2003
• Docket Number: No. B153258.,B153258.
• Court: California Court of Appeals Court of Appeals
• Parties: Christian MOSER, Plaintiff and Appellant, v. Joanne RATINOFF, Defendant and Respondent.

130 Cal.Rptr.2d 198

105 Cal.App.4th 1211

Christian MOSER, Plaintiff and Appellant, v. Joanne RATINOFF, Defendant and Respondent.

No. B153258.

Court of Appeal, Second District, Division 5.

January 31, 2003.

Review Denied April 23, 2003.

Law Offices of Michael L. Oran, Michael L. Oran, Bel Air, and Kathy B. Seuthe, Encino; Law Offices of Garry S. Malin and Garry S. Malin, Tarzana, for Plaintiff and Appellant.

Barry Bartholemew & Associates, Michael A. Nork and Kathryn Albarian, Santa Monica, for Defendant and Respondent.

MOSK, J.

Plaintiff and appellant Christian Moser (Moser) and defendant and respondent Joanne Ratinoff (Ratinoff) participated in an organized, long-distance bicycle ride on public highways involving hundreds of participants. Moser signed an "Accident Waiver and Release of Liability" form for the benefit of the event holders, sponsors and organizers in which Moser expressly assumed the risk of various injuries, including those caused by other participants. During the ride, Ratinoff swerved into Moser, causing him to crash and sustain injuries. Moser sued Ratinoff for general negligence. Ratinoff filed a motion for summary judgment on the ground that a collision between bicycle riders was an inherent risk in the ride, and if therefore the action was barred by the primary assumption of risk doctrine enunciated in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight). Moser opposed the motion on the grounds that the primary assumption of risk doctrine did not apply because the collision was not an inherent risk of the activity and because Ratinoff's violation of provisions of the California Vehicle Code precluded application of the doctrine. The trial court granted summary judgment in Ratinoffs favor. We hold that the primary assumption of risk doctrine applies to the organized bicycle ride, and that a violation of a statute does not displace that doctrine. Accordingly, we affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND¹

Moser and Ratinoff collide during a bicycle ride

In February 1999, Moser registered to participate in the "Death Valley Double Century" bicycle ride, a 200-mile, noncompetitive bicycle ride on public highways. Hugh Murphy Productions organized the ride in which approximately 600 bicycle riders participated.² Before participating in the ride, Moser signed a document provided by the organizers entitled "Accident Waiver and Release of Liability" (the release), releasing the organizers and stating, "I acknowledge that this athletic event is an extreme test of a person's physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to those caused by ... actions of other people including but not limited to participants.... I hereby assume all of the risks of participating & /or volunteering in this event." The organizer required riders to wear helmets and to have bicycle lights.

The ride had no designated start time. On the day of the accident, Moser and his friend, David Warshawsky (Warshawsky), began the ride at 4:00 a.m. At a rest stop, Moser and Warshawsky encountered Ratinoff, another participant in the ride. The three cyclists left the rest stop together, with Warshawsky and Ratinoff riding side by side and Moser riding behind them. At some point, they began riding single file.

Moser was cycling close to the right hand side of the road. Ratinoff said that she came from behind Moser's left side and passed him or rode at his left side. Moser said Ratinoff came up from behind him and rode next to him on his left side. While she was riding on Moser's left side, an Inyo County Sheriffs Deputy pulled his car approximately four or five car lengths behind them and stayed there for several minutes. Ratinoff turned to look at the police car, and she then told Moser, "I have to come over." According to Ratinoff, a "split second" later, she moved to her right toward Moser.

As Ratinoff moved to her right, she made contact with Moser, who nevertheless was able to retain control of his bicycle. Within seconds, Ratinoff again collided with Moser, causing him to fall off his bike and to sustain injuries. At the time of the collision, Ratinoff and Moser were riding at an approximate speed of 15-20 miles per hour.

Moser sues Ratinoff, and Ratinoff files a motion for summary judgment

Moser commenced an action against Ratinoff and in his complaint alleged that Ratinoff "negligently, recklessly and carelessly operated, owned, controlled and maintained" her bicycle "so as to collide with" Moser's bicycle. Ratinoff alleged assumption of risk as an affirmative defense.

Ratinoff filed a motion for summary judgment in which she contended that she was not liable to Moser because under the primary assumption of risk doctrine she did not breach a duty of care owed to him. Moser, in opposition to the motion, argued that the primary assumption of risk doctrine does not apply to noncompetitive bicycle riding and that Ratinoff violated Vehicle Code sections 21202, subdivision (a) (operating a bicycle as close "as practicable to the right-hand curb or edge of the roadway"), and 22107 (moving a vehicle to the left or right "with reasonable safety"), thereby giving rise to a presumption of negligence and rendering the primary assumption of risk doctrine inapplicable.

The trial court granted the summary judgment motion and entered judgment against Moser. The trial court denied Moser's motion for new trial. Moser does not raise the denial of his new trial motion as a basis for his appeal.

STANDARD OF REVIEW

We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19, 17 Cal.Rptr.2d 356.) We make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222, 38 Cal.Rptr.2d 35.) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc, § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853, 107 Cal. Rptr.2d 841, 24 P.3d 493.)

"When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiffs primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains." (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395, 36 Cal.Rptr.2d 418.) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight, supra, 3 Cal.4th at p. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696; Record v. Reason (1999) 73 Cal.App.4th 472, 479, 86 Cal.Rptr.2d 547.)

DISCUSSION

A person is generally responsible "for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person." (Civ.Code, § 1714.) But a defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk. (Knight, supra, 3 Cal.4th at pp. 308, fn. 4, 309-321, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

I. Express assumption of risk

Before reaching the issue of implied assumption of risk, we must determine if Moser expressly assumed the risk of a collision based on the release he signed. An express assumption of risk is a complete defense to a negligence claim. (Knight, supra, 3 Cal.4th at p. 308, fn. 4, 11 Cal.Rptr.2d 2, 834 P.2d 696; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358,1372, 59 Cal.Rptr.2d 813; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012, 54 Cal.Rptr.2d 330.) Moser released the "event holders, sponsors and organizers," and also acknowledged the risks of the ride, including those caused by other participants. The document does not purport to be a release of anyone other than the "event holders, sponsors and organizers."

In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 22 Cal.Rptr.2d 781 (Westlye), the plaintiff, who was injured skiing, filed an action against the ski shop from which he rented allegedly defective ski equipment and the distributors of the equipment. He had signed a written agreement with the ski shop in which he accepted the equipment for use "as is"; agreed that he understood that there "`are no guarantee] for the user's safety'"; acknowledged that there is "`an inherent risk of injury in the sport of skiing, and the use of any ski equipment, and expressly assume[d] the risks for any damages to any persons or property resulting from the use of this equipment'"; and released the ski shop from any liability. (Id. at p. 1725, 22 Cal.Rptr.2d 781.)

The distributors of the equipment contended that "as a matter of law an express assumption of risk is good as against the whole world" and therefore precluded any liability against the distributors. (Westlye, supra, 17 Cal.App.4th at p. 1729, 22 Cal. Rptr.2d 781.) In holding that plaintiff had not released the distributors of the equipment, the court said, "defendants fail to submit, and we have not discovered, any authority for [the distributors'] proposition. The doctrine of express assumption of the risk is founded on express agreement. [Citations.] `Although in the academic literature "express assumption of risk" often has been...