Palaski v. State, F048746 (Cal. App. 5/1/2007)

• Court: California Court of Appeals
• Writing for the Court: Ardaiz
• Decision Date: 01 May 2007
• Docket Number: F048746
• Citation: Palaski v. State, F048746 (Cal. App. 5/1/2007) (Cal. App. 2007)
• Parties: DIANE PALASKI et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.

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DIANE PALASKI et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.

F048746

Court of Appeals of California, Fifth Appellate District

May 1, 2007

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Tuolumne County, No. CV50590, William Polley, Judge.

Hinton, Alfert & Sumner, Peter W. Alfert and Elise R. Sanguinetti, for Plaintiffs and Appellants.

Bruce R. Behrens, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, Jeanne R. Scherer, Assistant Chief Counsel and Kevin M. Corrington, for Defendant and Respondent.

OPINION

ARDAIZ, P.J.

In this case, we are asked to determine whether the primary assumption of risk doctrine, as formulated by the California Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), operates to completely bar a negligence action against the State of California arising from the death of a solo long-distance bicyclist due to a dangerous condition of a public road. We hold that the State can assert the primary assumption of risk doctrine in such circumstances. Thus, we affirm the grant of summary judgment for the State.

STATEMENT OF THE FACTS

The basic facts are undisputed.¹ On June 21, 2003, on his 65th birthday, plaintiffs' decedent, Richard Lewis Palaski (Palaski), was engaged in a solo long-distance bicycle ride from his home in Clayton, California to Yosemite National Park. He planned to spend two days in Yosemite with his family to celebrate his birthday. While crossing a bridge located about 10 miles from the Highway 120 entrance to Yosemite, Palaski lost control of his bicycle, went over a bridge rail and fell with his bicycle 75 feet to his death on the rocks below the bridge.

Prior to the accident, Palaski was riding on the right shoulder of Highway 120 downhill at a speed of 15 to 25 miles per hour. At the end of the downhill slope the road turns left and crosses a bridge. On the date of the accident, the bridge suffered from three conditions. First, there was a bump one to two inches high along the expansion joint that connected the bridge to the rest of Highway 120. Second, the height of the bridge rail on the right side was 30.5 inches above the pavement, which was less than the 32 inches that the design plans had called for. Third, the right shoulder of the bridge was covered by sand estimated to be one-quarter to one inch thick.² According to plaintiffs' experts, this sand obscured the bump.

According to the undisputed declaration by a CalTrans bridge engineer, it is inherent that a bridge like the one at issue will expand and contract, and such expansion will cause the expansion joint to expand and form a bulge or hump in the area surrounding and above the expansion joint. Such bulges or humps are typically one to two inches in height.

The same CalTrans engineer also stated that the design plans for the bridge rail called for a rail height of about 34.5 inches as measured from the surface of the road, and for about 2.5 inches of AC pavement to be placed on top of the road surface, resulting in an effective rail height of 32 inches. However, due to the difficulty in laying and compacting the AC pavement, sometimes the pavement was not properly compacted, resulting in an effective bridge rail height of 30.5 inches at some places along the bridge.

Another CalTrans engineer had recommended a "standard" rail design for the bridge because the bridge and the surrounding highway were neither areas of high bicycle usage nor designated as a bicycle route or bicycle lane. While bicycle use of Highway 120 (including the bridge) is permitted, it is infrequent. The standard bridge rail has a height of 32 inches; a bridge rail designed for bicycle traffic would have been at least 54 inches high.

CalTrans's Groveland yard maintains the bridge. Groveland schedules and conducts maintenance operations — application and sweeping of sand and repair of uneven pavement surfaces — based on motor vehicular use of Highway 120. Sand from winter maintenance applications is routinely found on the shoulder surfaces of Highway 120 in the Groveland area until the roadway and shoulders are completely swept after the winter season. When the final sweeping occurs depends upon when Groveland is scheduled to use the sole available sweeper, which is assigned by rotation to each mountain region yard.

On April 18, 2003, during a late-season snowstorm, the Groveland crew applied sand on Highway 120, including on the bridge. Final 2003 sweeping of Highway 120 occurred in late June or early July, after Palaski's accident, because that was when Groveland was scheduled to use the sweeper that year; Groveland did no sweeping between the April snowstorm and Palaski's June 21, 2003 accident.

On October 14, 2003, the Groveland crew scraped the mounded expansion joint material at both ends of the bridge to approximately level with the bridge roadway surface, to prevent the snagging of the crew's snowplow blades during winter operations.

Palaski was in the midst of making his annual Yosemite ride when he died in the accident. According to Palaski's wife, about 15 years before the accident, Palaski began bicycling as a hobby. He gradually became more involved in bicycling, taking 25-mile bike rides every two weeks. As his interest deepened, he took regular 60-mile bike rides around Mt. Diablo, usually with one or two companions.

Palaski bike-commuted 10 miles to work each day because he considered it good training. He participated in two organized long-distance group rides, one from San Francisco to San Luis Obispo, and another from Sausalito through San Francisco. However, he never participated in bike races. In 1994, Palaski was diagnosed with Hodgkin's disease, which later went into remission after treatment. During this treatment, he did not go on any long rides, but still did his daily bike commute.

In January 2003, Palaski was diagnosed with Parkinson's disease. That shocked him, but he made no lifestyle changes. Even after the diagnosis, Palaski would ride long distances around Mt. Diablo with other riders, to train for the big Yosemite rides.

It was Palaski's goal to do a bike ride from his home in Clayton, California to Yosemite National Park each year. Palaski made all of his Yosemite rides, including the 2003 ride, because he loved to ride, and he liked the physical challenge. He had done the Yosemite ride three or four times before the latest 2003 ride. Palaski did not have a set time on when he did his ride; he has done it in September, May and June. He also did not have a goal in terms of getting to a certain point within a certain time frame. On June 21, 2003, Palaski was not racing against himself on this trip and was not attempting to beat any other person's time or any of his prior times in reaching Yosemite. He also traveled by truck for 20 miles during the steepest part of the trip.

Before the first Yosemite ride, Palaski and his wife drove various public highway routes to select the best and safest route to Yosemite. Part of the selection criteria included whether there were bike lanes, the amount of traffic, and the time of day when traffic would be worst. Palaski planned to bike during the night to avoid traffic on the narrow roads. Once Palaski and his wife selected the bike route, they followed the route on each Yosemite ride. The route included some bike lanes, but no bike paths.

On the 2003 trip, Palaski left from Clayton, California at 11:00 p.m. on the night of June 19, 2003 to begin his ride. He had a special bike light on his helmet and a flashlight strapped to the bike, and a vest with blinking red lights for riding at night. Palaski's wife and grandson followed the next morning. They caught up with him about 20 miles west of Coulterville. Palaski told his wife that he was tired. Palaski then rode in the truck for the remainder of the way into Coulterville. Palaski had lunch and dinner in Coulterville. He left the hotel the next morning at between 6:00 a.m. to 6:30 a.m. His wife and his grandson caught up with him before he reached Highway 120. He had a sandwich and some Gatorade. His wife and grandson then drove ahead and waited for him about a mile beyond the accident site.

Two percipient witnesses testified about the accident. They were traveling in the same direction (eastbound) that Palaski was traveling. One percipient witness was a passenger in an eastbound vehicle. He testified that his vehicle was descending down the hill towards the entrance of the bridge when he saw Palaski on his bicycle about a third of the way down the bridge. They passed Palaski and crossed the bridge. Palaski was coasting straight, not pedaling, and was accelerating.

The other percipient witness testified that he was descending the hill when he saw Palaski near the entrance to the bridge. Palaski was coasting in a straight line at about 20 miles per hour, and not pedaling the bike. After the witness safely passed Palaski, he saw in his rear-view mirror that Palaski "was close to the edge of the bridge," and that his bike's front wheel began wobbling left and right — "the way it would when you're riding a bicycle very slowly and it's hard to keep the tires straight" — after which Palaski and his bike went over the rail. Palaski had acquired the red Trek 7900 bicycle that he rode on the accident date about seven years before his death. On June 21, 2003, it was configured for road riding with pedals to which the cleats on the bottom of his bike shoes were attached.

STATEMENT OF THE CASE

On May 27, 2004, Palaski's wife and his surviving adult children filed a wrongful death action seeking to hold the State of California liable. Their complaint alleged that the State of California was liable under Government Code, section 835,³ for creating a dangerous condition of public property of which it had notice and failed to protect against, due to the conditions present on the Highway 120 bridge, Bridge No. 32-35, on June 6,...